FEDERAL COURT OF AUSTRALIA

Walsh v Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) (No 2) [2017] FCA 852

ORDERS

THE COURT ORDERS THAT:

1.    The application against the first respondent is dismissed.

2.    The application against the second respondent is allowed.

3.    The second respondent is to pay compensation to the applicant in the amount of $6,583.22, inclusive of interest.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The first respondent (UTHSAC) operates a publicly funded health service in the remote South Australian town of Coober Pedy. Its Chief Executive Officer is the second respondent, Priscilla Larkins.

2    Alexandra Walsh is a former employee and office holder of UTHSAC. She alleges that she was victimised by UTHSAC and Mrs Larkins because she made protected disclosures of information under Pt 10-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).

3    The alleged acts of victimisation include the termination of Ms Walsh’s employment by UTHSAC and subsequent acts of intimidation and harassment by Mrs Larkins personally or through members of Mrs Larkins’ family with her knowledge and authority.

4    Ms Walsh alleges that the respondents have, by their acts of victimisation, contravened s 469-5 of the CATSI Act. She makes a claim for compensation against them both.

5    The claim against UTHSAC is precluded by statute and should be dismissed for that reason.

6    I am otherwise satisfied that Ms Walsh made all but one of the pleaded protected disclosures and that one of the acts of victimisation pleaded against Mrs Larkins is established on the evidence. The application against Mrs Larkins should be allowed to that extent. Mrs Larkins is to pay compensation to Ms Walsh in the amount of $5,000.00 plus pre-judgment interest.

THE CATSI ACT

7    The CATSI Act provides for the incorporation, registration and regulation of corporations known as “Aboriginal and Torres Strait Islander Corporations”. Section 1-30 establishes the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (ORIC), a regulatory body with responsibilities affecting the administration and accountability of corporations governed by the Act. Part 10-5 is titled “Protection for whisteblowers”. It establishes a regime for the protection of persons who make certain disclosures. A disclosure will qualify for protection under Pt 10-5 if it meets the criteria specified in s 466-1. Section 469-5 prohibits the victimisation of persons who make protected disclosures. It relevantly provides:

Actually causing detriment to another person

(1)    A person (the first person) contravenes this subsection if:

(a)    the first person engages in conduct; and

(b)    the first person’s conduct causes any detriment to another person (the second person); and

(c)    the first person intends that his or her conduct cause detriment to the second person; and

(d)    the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

Threatening to cause detriment to another person

(2)    A person (the first person) contravenes this subsection if:

(a)    the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

(b)    the first person:

(i)    intends the second person to fear that the threat will be carried out; or

(ii)    is reckless as to causing the second person to fear that the threat will be carried out; and

(c)    the first person makes the threat because a person:

(i)    makes a disclosure that qualifies for protection under this Part; or

(ii)    may make a disclosure that would qualify for protection under this Part.

…

8    Where a person suffers damage because of a contravention of s 469-5, the person in contravention must compensate the victim for the damage: s 469-10.

SUMMARY OF CLAIMS

9    Ms Walsh alleges that she made protected disclosures orally to three directors of UTHSAC in late March 2012 (Fourth Amended Statement of Claim (SOC) [4(a)(i) – (iii)]). The directors were Ms Pearl Austin, Mr Ian Crombie and Mr David Hunter. Mr Hunter was, at the time of the alleged disclosures, the Chairman of the Board of Directors of UTHSAC. The disclosures to the three directors were allegedly made in a series of informal meetings between 24 and 29 March 2012. Protected disclosures are also alleged to have been made by way of a letter from Ms Walsh’s solicitor to UTHSAC dated 16 April 2012 (SOC [4(a)(iv)]). In brief summary, the alleged disclosures were to the effect that Mrs Larkins had improperly:

(1)    moved into a property owned by UTHSAC (the Ward Street property) without obtaining the approval of the Board;

(2)    instructed Ms Walsh to lie to South Australia Police (SAPOL) concerning her move into the Ward Street property;

(3)    caused UTHSAC to purchase a new Toyota Prado vehicle for her personal use without the approval of the Board and without the purchase being budgeted for;

(4)    approved a request for UTHSAC’s director of clinical services, Arlene Ackland, to work remotely from Adelaide without submitting the request to the Board for approval; and

(5)    instructed Ms Walsh not to approach the Board about the expenditure of $6,200 on the installation of shade cloth on a private rental property at which a member of staff, being Ms Ackland’s sister, resided.

10    It is common ground that Ms Walsh’s employment was suspended from 2 April 2012 and then terminated on 20 April 2012. Ms Walsh alleges that UTHSAC suspended and then terminated her employment because she had made the above disclosures (SOC [15] and [17]). That is the only act of victimisation alleged against UTHSAC.

11    There are six acts of victimisation alleged against Mrs Larkins. All of the acts are said to have occurred after the termination of Ms Walsh’s employment. They are:

(1)    Mrs Larkins’ husband, Patrick Larkins (also a director of UTHSAC and a member of SAPOL), parked his car near Ms Walsh’s house and stared at the house for an extended period in an intimidating manner (SOC [18(b)]);

(2)    Ms Walsh’s husband, George Naumovic, was arrested by SAPOL on two historical warrants dating back to the mid-1980’s (SOC [18(c)]);

(3)    Mrs Larkins approached Ms Walsh at a roadhouse in Coober Pedy “at close quarters” and said, while laughing, “I’m going to get your husband killed in jail” (SOC [18(d)]);

(4)    Mrs Larkins “tailgated” Ms Walsh, before overtaking and then slamming on the brakes in an intimidating manner in front of Ms Walsh’s car (SOC [18(f)]);

(5)    Mrs Larkins’ son, Kyle Larkins, and his girlfriend, Richelle Borrett, confronted Ms Walsh and Mr Naumovic in a local supermarket. Kyle Larkins asked Mr Naumovic, in an intimidating manner, if he “had a problem” (SOC [18(g)]); and

(6)    After Ms Walsh had made a report to SAPOL concerning the conduct of Kyle Larkins and Ms Borrett at the supermarket, Mrs Larkins drove toward Ms Walsh and made an insulting gesture out of the car window (SOC [18(g)]).

12    Mr Naumovic is not joined as an applicant in the proceedings and Mr Larkins, Kyle Larkins and Ms Borrett are not joined as respondents.

13    Although two of the alleged acts of victimisation appear to be directed at Mr Naumovic personally, the acts are nonetheless capable of being detrimental to Ms Walsh if they are viewed as a means of intimidating her or otherwise causing her detriment in the form of fear and distress. The trial proceeded on that basis, at least insofar as the arrest of Mr Naumovic was concerned. I would in any event consider the terms of s 469-5 of the CATSI Act to be wide enough to capture the circumstances in which detriment is suffered by or threatened against Mr Naumovic, although it would remain necessary for Ms Walsh, as the sole applicant, to establish that she has suffered compensable loss for the purposes of s 469-10 in respect of that detriment.

14    Mrs Larkins is alleged to have known about, and to have been implicated in, the conduct of Mr Larkins, SAPOL and Kyle Larkins, such that those acts are acts for which Mrs Larkins is liable. The pleadings do not give particulars of the manner in which Mrs Larkins is said to have authorised or to otherwise have been implicated in the actions of non-parties to the action.

15    Ms Walsh alleges that she has, by reason of the contraventions, suffered from stress, an adjustment disorder with depressed and anxious moods, mild anxiety and depression, emotional upheaval, hyper-alert and fearful state, and shoulder pain: SOC [20]. She alleges that she remains unfit for work by reason of her symptoms and that she cannot, in any event, secure alternative employment in Coober Pedy to replace the salary she received as an employee of UTHSAC: SOC [27] – [28].

16    Shortly prior to the termination of her employment, Ms Walsh lodged a workers compensation claim. On 23 April 2012, she lodged an unfair dismissal claim with Fair Work Australia as it was then known (FWA) under s 394 the Fair Work Act 2009 (Cth) (FW Act). FWA determined that Ms Walsh had been unfairly dismissed by UTHSAC and awarded Ms Walsh 26 weeks’ pay in compensation.

17    On 26 March 2013, Ms Walsh’s claim for workers compensation was accepted. She entered into a redemption agreement pursuant to which she received the equivalent of an additional two years’ salary. Ms Walsh pleads that the FWA damages award and the worker’s compensation benefits are to be “brought into account” in assessing damages in this action.

THE CASE AGAINST UTHSAC

18    UTHSAC contends that the proceedings against it are barred by the operation of s 725 of the FW Act or alternatively that s 725 constitutes a complete defence to the action against it. I will deal with that contention first.

19    Division 3 of Pt 6-1 of Ch 6 to the FW Act is titled “Preventing multiple actions”. Section 725 is contained in Subdiv 3B. It establishes a general rule against multiple actions relating to a person’s dismissal from employment. It provides:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

20    For the purposes of the general rule, UTHSAC submits that this action is an application of a kind referred to in s 732 of the FW Act and that s 729 of the FW Act applies.

21    Section 732 provides:

732    Applications and complaints under other laws

(1)    This section applies if:

(a)    an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application or complaint has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

(2)    An application or complaint under another law is an application or complaint made under:

(a)    a law of the Commonwealth (other than this Act); or

(b)    a law of a State or Territory.

(3)    For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.

22    This action is properly to be regarded as an “application or complaint” within the meaning of s 732(2)(a). More specifically, the application against UTHSAC is one for compensation “in relation to” the dismissal of Ms Walsh from her employment. The words “in relation to” are words of broad import. They encapsulate a claim in which a person alleges that his or her dismissal from employment constitutes an act of victimisation. The first limb of UTHSAC’s argument is accepted.

23    Section 729 of the FW Act provides:

729    Unfair dismissal applications

(1)    This section applies if:

(a)    an unfair dismissal application has been made by the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction; or

(iii)    failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2)    An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

24    Section 729 applies because Ms Walsh made an unfair dismissal application, being an application under s 394(1) of the FW Act for a remedy for unfair dismissal as defined in s 729(2). The application was not withdrawn, nor did it fail for want of jurisdiction, nor did it fail because the FWA was satisfied that the dismissal was a case of genuine redundancy.

25    It follows that the general rule in s 725 of the FW Act operates so as to prevent Ms Walsh from making the claim pleaded against UTHSAC in this proceeding. As the termination of Ms Walsh’s employment is the only act of victimisation alleged against it, the application against UTHSAC must be dismissed.

ISSUES IN THE CASE AGAINST MRS LARKINS

26    There are five broad issues arising in the case against Mrs Larkins:

(1)    whether Ms Walsh made disclosures qualifying for protection under s 466-1 of the CATSI Act;

(2)    whether Mrs Larkins did, or authorised the doing, of any of the acts alleged by Ms Walsh;

(3)    whether any proven acts are of the kind defined in s 469-5 of the CATSI Act;

(4)    whether Mrs Larkins did or authorised any proven act because Ms Walsh had made disclosures that qualified for protection under the CATSI Act; and

(5)    if so, whether Ms Walsh has suffered loss “because of” any proven conduct of Mrs Larkins, so as to qualify for an award of compensation under s 469-10 of the CATSI Act.

PROOF

27    Ms Walsh bears the onus of proving all of the essential elements of her claim to the civil standard of proof, taking into account the matters referred to in s 140 of the Evidence Act 1995 (Cth). The findings set out in these reasons should be understood as having been made in accordance with that standard.

28    The resolution of Ms Walsh’s claims against Mrs Larkins requires consideration of a multitude of interrelated and contested facts. In many important respects, the issues to be determined turn on my assessment of the credit and reliability of the parties’ witnesses. It is convenient at this juncture to give reasons for two rulings that broadly relate to the credibility of Mrs Larkins and Ms Walsh. Otherwise, where it is necessary to comment on the credit or reliability of a particular witness, I will do so in the course of expressing my findings in relation to the substantive issues.

Application for leave to adduce further evidence

29    Ms Walsh conducted the trial as a self-represented litigant.

30    After judgment in this matter was reserved, Ms Walsh made an application for orders to the effect that the trial be re-opened and that the Court receive additional evidence. I reserved my judgment on that application and informed Ms Walsh that if the application was to be refused, I would give reasons for the refusal in the course of giving reasons for judgment in the proceeding.

31    The additional evidence sought to be adduced by Ms Walsh bears only on the credit of Mrs Larkins. The evidence is intended to show that Mrs Larkins was untruthful in giving evidence-in-chief to the effect that she had a particular status in the Aboriginal community.

32    Leave to re-open the trial and adduce the new evidence should be refused. The evidence bears only peripherally upon the credit of a witness and does not otherwise tend to prove or disprove any one of the multitude of factual issues to be determined. My critical assessment of Mrs Larkins’ credit would not otherwise be materially altered by the evidence sought to be relied upon by Ms Walsh in any event.

Admissibility and weight of diary entries

33    In 2012 and 2013 Ms Walsh kept diaries in which she recorded her dealings with UTHSAC, Mrs Larkins, members of the Larkins family and other members of the Coober Pedy community. The diary contains narratives authored by Ms Walsh concerning the events that are in issue in this proceeding. At trial, the parties were in dispute as to admissibility of the diaries. The dispute was resolved by consensus on the basis that the Court admit into evidence only those diary entries dated 29 March 2012, 2 April 2012, 4 September 2012, 15 October 2012 and 22 March 2013 and only then for the purpose of restoring Ms Walsh’s credit in relation to the subject matter dealt with in those entries. A further page was admitted on the respondent’s case in support of submissions going to the reliability of the diaries.

34    As to reliability, the respondents invite the Court to draw an inference that the relevant portions of the diary were prepared on dates other than the diarised dates. I accept that to be the case. However, I decline to draw the inference that Ms Walsh’s conduct in making the entries evidences any preparedness on her part to create a false or exaggerated record for the purpose of bolstering her credibility in this action. Ms Walsh’s practice of making entries in a diary at times when the date of the entry had passed affects the weight that is to be accorded to the evidence. The weight is also affected by the circumstance that Ms Walsh has been engaged in or has otherwise anticipated legal proceedings in the period to which the admitted pages of the diaries relate. The ascription of weight is difficult to assess because Ms Walsh did not give evidence-in-chief or in re-examination about her general practice of keeping the diaries, particularly concerning the passage of time between the particular events occurring and the events being recorded. The deficiency in the evidence in that regard is a product of the consensus arrived at by the parties to the effect that only certain portions of the diaries be admitted in evidence for certain purposes. By their consensus the parties sought (properly) to avoid adducing additional evidence on a voir dire at a time when the trial was well advanced. It nonetheless renders my assessment of the reliability of the particular admitted entries difficult.

35    Ms Walsh was cross-examined in relation to one page of a diary that did not relate to a critical issue in the proceedings. I am satisfied that she made that entry at a time when she was still able to recall the subject matter of the entry, even though she could not recall the precise day on which the relevant events had occurred. It was not otherwise put squarely to Ms Walsh that she had given a knowingly false account of the particular event. In the circumstances, I consider the reliability of the diary evidence to be affected by some diminution in Ms Walsh’s memory of the detail of events. I do not otherwise consider the narratives admitted in evidence to be deliberately falsified accounts.

36    I limit my consideration of the diaries to those pages admitted in evidence at trial and to the purpose agreed by the parties.

THE REQUIREMENTS OF A PROTECTED DISCLOSURE

37    Section 466-1 of the CATSI Act defines the disclosures that qualify for protection under Pt 10-5. It relevantly provides:

Disclosures qualifying for protection

(1)    A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

(a)    the discloser is:

(i)    an officer or contact person of an Aboriginal and Torres Strait Islander corporation; or

(ii)    an employee of an Aboriginal and Torres Strait Islander corporation; or

…

(b)    the disclosure is made to:

…

(iii)    a director, secretary or senior manager of the corporation; or

…

(c)    the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

(d)    the discloser has reasonable grounds to suspect that the information indicates that:

…

(ii)    an officer or employee of the corporation has, or may have, contravened a provision of this Act; and

(e)    the discloser makes the disclosure in good faith.

38    The threshold set by the phrase “reasonable grounds to suspect” is not an onerous one. A “suspicion” is a state of conjecture or surmise where proof is lacking. It is a state of mind that is different from and less demanding than the formation of a belief: George v Rockett (1990) 170 CLR 104 at 115 – 116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). Proof of a suspicion requires “a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not”: Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 at 1025 (Ormiston J). In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 (at 303), Kitto J described suspicion as amounting to “a slight opinion, but something without sufficient evidence”.

39    The word “reasonable” imports an objective standard: Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562 at 595 (Kirby and Crennan JJ) and Allen v Chadwick (2015) 256 CLR 148 at [50] – [51] (French CJ, Kiefel, Bell, Keane and Gordon JJ). The inquiry “is an inquiry into the objectively formed state of mind of a person of ordinary competence”: Australian Securities and Investments Commission v Edwards [2005] NSWSC 831; (2005) 220 ALR 148 at [249] (Barrett J).

40    The requirement that the disclosure be made in good faith involves subjective considerations: Downey v Aira Pty Ltd (1996) 14 ACLC 1,068 at 1075. In Cussen v Sultan [2009] NSWSC 1114; (2009) 74 ACSR 496 at [34] Nicholas J said, of the phrase “good faith” in s 588F of the Corporations Act 2001 (Cth):

The concept of ‘good faith’ encompasses notions of honesty of purpose, motive, or intention which actuated the defendant to become a party to the impugned transaction. The concepts are interchangeable. To show that a person became a party to the transaction subjectively in good faith it is necessary to prove that the motive which actuated the person to do so was honest and proper. The inquiry, accordingly, is directed to the party’s state of mind, with regard to his knowledge and belief about the nature of the transaction at the relevant time.

MRS LARKINS’ CASE

41    Mrs Larkins put Ms Walsh to proof on all aspects of her allegation that she had made protected disclosures, including on the question of whether she acted in good faith. A large part of the trial was consumed by that issue.

42    It is alleged that if Ms Walsh disclosed information to certain directors she was not motivated by a genuine concern for the proper governance of UTHSAC but rather sought to “discredit and undermine” Mrs Larkins. In support of their allegation that Ms Walsh did not act in good faith, the respondents gave the following particulars:

Particulars

3.3.4.1    [Ms Walsh] was actuated by malice which is to be inferred from the circumstances leading to, or consequences of, the dealings between [Ms Walsh’s] husband and [Mrs Larkins], which were known to [Ms Walsh], namely that in 2011, prior to the events in question occurring, and at a time preceding [Ms Walsh’s] husband meeting [Mrs Larkins], [Ms Walsh’s] husband made threats of physical violence against [Mrs Larkins] and her family;

3.3.4.2    [Ms Walsh’s] conduct was not confined to a disclosure for the purpose of the CATSI Act, but instead was a course of conduct against [Mrs Larkins] of which she was the prime mover; and

3.3.4.3    viewed objectively, it was self-evident that the conduct alleged in the relevant disclosure did not, and could not amount to a contravention of the CATSI Act.

43    Much of the evidence relied upon in support of the allegations bore equally on the question of whether Ms Walsh in fact held the suspicions she professed to hold and, to some extent, on the question of whether her professed suspicions were objectively reasonable.

44    It is convenient to first consider the subject matter of the disclosures and the knowledge and beliefs subjectively held by Ms Walsh at the time that the disclosures were made. In the course of doing so, I will assess whether her suspicions were reasonably held. The question of reasonableness will be assessed in part against the respondents’ allegation that it was “objectively self-evident” that the conduct of Mrs Larkins “did not and could not amount to a contravention of the CATSI Act”.

45    I will then turn to consider any remaining undecided questions of fact that bear upon the respondents’ plea that Ms Walsh did not, in any event, act in good faith.

KNOWLEDGE, SUSPICION AND REASONABLENESS

Background knowledge

46    The following paragraphs constitute my findings concerning Ms Walsh’s knowledge and beliefs immediately prior to the meetings that occurred between 24 and 29 March 2012. The findings are based largely on oral evidence given by Ms Walsh about her knowledge, opinions and beliefs, which I accept.

47    UTHSAC was incorporated under the CATSI Act on 7 October 2010. Prior to that time, the health service was operated by an association incorporated under the Associations Incorporation Act 1985 (SA) (the Umoona Tjutagku Health Service Inc). Ms Walsh was initially employed by the predecessor association as Mrs Larkins’ executive assistant and was subsequently appointed as business services manager. When the organisation transitioned to incorporation under the CATSI Act, Ms Walsh became company secretary of the newly formed corporation while continuing to fulfil the role of business services manager. Her appointment as company secretary persisted until her employment was terminated in April 2012.

48    There was some dispute at trial as to whether Ms Walsh was ever a director of UTHSAC. I do not consider it necessary to resolve this issue. It is sufficient to find that Ms Walsh was an officer by virtue of her appointment as company secretary and an employee in her capacity as business services manager. I am also satisfied that Ms Walsh genuinely believed that she was also a director. Her state of mind in making the disclosures is to be assessed in that context.

49    Soon after her appointment as company secretary, Ms Walsh underwent governance training in which she was made broadly aware of the requirements of the CATSI Act. The governance training was delivered by Ms Jacene Wiseman. Minutes of the newly formed corporation indicate that Ms Wiseman was also involved in facilitating meetings and providing governance advice and support to Board members during its transition. As a result of her governance training, Ms Walsh acquired some rudimentary knowledge of the duties cast upon the officers of UTHSAC, particularly a duty to act in the best interests of the corporation. She did not profess in her evidence to have any detailed knowledge about the operation of the Act. She did, however, give evidence to the effect that it was “drummed into us” that if an officer did not act in the best interests of the corporation “and make all your judgments on that” then there may be penalties of imprisonment or a $200,000 fine.

50    Ms Walsh said she was provided with fact sheets in the course of her governance training which were to the same or similar effect as two fact sheets she tendered in evidence. I am satisfied that Ms Walsh did read and receive fact sheets to the effect tendered by her. The fact sheets fairly summarise the duties owed by an officer of Aboriginal and Torres Strait Islander Corporations under the CATSI Act, including the duty to act with due care and diligence and the duty not to misuse the position to gain a benefit for him or herself or someone else. I am satisfied that Ms Walsh reasonably believed those duties applied to Mrs Larkins as CEO.

51    Ms Walsh also had some awareness of UTHSAC’s policies and procedures relating to fraud and corruption, which she understood (correctly) to broadly reflect the requirements of the CATSI Act.

Perceived conflicts of interest

52    At or around the time of the alleged disclosures:

    Mrs Larkins was married to Mr Larkins, a director of the UTHSAC Board;

    Mrs Larkins was a close friend of Ms Ackland, whom she had appointed UTHSAC’s director of clinical services. The friendship was a close one. Ms Ackland had been Mrs Larkins’ bridesmaid and they holidayed together with their husbands and children;

    Ms Ackland was married to Mr Larkins’ cousin;

    Ms Ackland’s sister, Cynthia Avilla, was employed by UTHSAC as a registered nurse;

    Mrs Larkins’ sister, Janine Le Bois, was employed by UTHSAC as an enrolled nurse;

    Mrs Larkins’ sons’ girlfriend, Ms Borrett, was employed by UTHSAC in the role of administrative assistant;

    Mrs Larkins was the niece of another UTHSAC director, Robin Walker; and

    three of the six directors on the UTHSAC Board were also employees of UTHSAC.

53    Ms Walsh knew of and was concerned about these inter-relationships.

54    Although the mere existence of real or apparent conflicts of interest were not pleaded as being the subject matter of a separate and discrete disclosure, I am satisfied that Ms Walsh’s suspicions that Mrs Larkins had contravened the CATSI Act in respect of the pleaded disclosures were informed by a genuine belief that the information she imparted was concerning when viewed in the context of the apparent conflicts. I am also satisfied that she intended to, and did in fact, ask the directors in question to consider the information in the broader context of the relationships to which I have referred.

55    It is fair to say that in the weeks preceding her disclosures, Ms Walsh was hyper-alert to the possibility of wrongdoing by Mrs Larkins in relation to the day to day management of UTHSAC insofar as her managerial decisions appeared to benefit herself and related parties. Her heightened sensitivity was informed in part by her awareness that the subject of conflicts of interest had been raised by a government representative as a risk affecting the organisation during its transition under the CATSI Act. She was also aware that an administrator had previously been appointed to the organisation and that it was operating under a “remediation plan” thus subjecting it to a greater degree of scrutiny. Public funding to UTHSAC had been approved for only 12 months at a time, with future funding being subject to further risk assessments.

56    There was, in March 2012, a cluster of events that, affected Ms Walsh’s thinking about Mrs Larkins’ conduct and motivations. Ms Walsh feared that, if she did not report her concerns, she might be personally implicated in Mrs Larkins’ perceived wrongdoing in her capacities as UTHSAC’s company secretary and business services manager. Her concerns in that regard are consistent with the contents of UTHSAC’s written policies which directed that employees must not fail to report a violation of the law.

57    I find that Ms Walsh genuinely believed that certain matters ordinarily falling within the day to day responsibilities of the CEO should be the subject of scrutiny and oversight by those Board members who were not affected by the apparent conflicts of interest to which I have referred, namely Ms Austin, Mr Crombie and Mr Hunter. She believed, not unreasonably, that a quorum for the purpose of any particular resolution should comprise only those directors who were not conflicted in respect of the question to be decided. She believed, again not unreasonably, that any director who was also an employee should not vote on issues affecting other employees or affecting Mrs Larkins’ conduct as CEO. She believed, again not unreasonably, that any approval sought by Mrs Larkins of her actions as CEO should not be voted on by any Board member who was a friend or relative. Ms Walsh demonstrated in the course of her evidence that she had a fixation upon the Board being unable to form a quorum in relation to critical issues affecting the management of the organisation and the oversight of its CEO.

58    Ms Walsh was challenged in cross-examination as to the reasonableness of her belief that favouritism and nepotism had influenced the appointment of certain staff members as employees of the organisation. She had claimed in her evidence that certain positions had not been duly advertised. She acknowledged under cross-examination that one position had been advertised but denied knowledge or involvement in respect of any other advertisements.

59    I do not accept the respondents’ submission to the effect that Ms Walsh’s stated concerns about nepotism were neither genuine nor reasonably grounded in reality. Ms Walsh’s evidence that no positions had been advertised was unqualified when it should have been qualified to the extent that she was aware of one advertisement. However, in light of her evidence as a whole, I do not consider her failure to qualify that statement to affect her credit more generally. The gist of the evidence was that there was a perceived lack of transparency concerning the whole of the recruitment process. Her perceptions were reasonable in light of the information available to her.

60    I pause to mention some aspects of the evidence that lend objective support to the concerns expressed by Ms Walsh about a lack of independence and transparency concerning Mrs Larkins’ decisions. Two matters may be mentioned. The first concerns employment of Mrs Larkins’ sister, Janine Le Bois. Mrs Larkins gave evidence to the effect that there was sufficient independence and transparency in the decision to employ Ms Le Bois as an enrolled nurse on terms that included rent-free accommodation. She described the decision as “quite independent” because she had left the decision and the negotiation of employment terms in the hands of Ms Ackland. The phrase “quite independent” is a curious description given the close friendship between Mrs Larkins and Ms Ackland. Mrs Larkins’ evidence in this respect demonstrated a lack of insight as to the importance of maintaining and complying with procedures that ensure that employment decisions be made truly at arms’ length.

61    A further incident concerns the terms and conditions of the employment of Ms Ackland herself. On 13 July 2011, Mrs Larkins and Ms Ackland executed two employment contracts for Ms Ackland. One of the contracts specifies that Ms Ackland was appointed to the position of “Director of Programs and Services/Deputy Chief Executive Officer”. Neither Mrs Larkins nor Ms Ackland gave an adequate explanation as to how that document came into existence or as to its status. Ms Ackland said she recalled seeing the document and acknowledged it bore her signature, but could not recall signing it. Mrs Larkins said that she could not recall if a position of Deputy Chief Executive Officer had ever been approved by the Board. She said there had been “some discussions” about the creation of such a position but it had never “gone ahead”. I am satisfied that no proposal that there be a Deputy Chief Executive Officer was ever considered by the UTHSAC Board, nor was there any independent recruitment process to identify who should fulfil any such position. Mrs Larkins did not explain why the document had been executed.

62    The creation of an executed contract between UTHSAC and Ms Ackland in relation to such a position reflects poorly on Mrs Larkins. It provides further evidence of her lack of insight into the existence and potential implications of the conflicts of interest affecting her role as CEO, particularly in making or purporting to make employment decisions benefiting or apparently benefiting her friends and family.

63    The second matter to which I have referred did not form any part of Ms Walsh’s body of knowledge at the time that she made the pleaded disclosures and it is not relevant to my assessment of Ms Walsh’s own state of mind at that moment in time. Each of the matters however, informs my assessment of Mrs Larkins’ own beliefs, attitudes and motivations in relation to Ms Walsh and the subject matter of the disclosures. I will return to that issue in due course.

The Ward Street property and “the SAPOL lie”

64    UTHSAC owns three residential properties in Coober Pedy. The first, known as the Ward Street property, is the subject matter of one of Ms Walsh’s alleged disclosures. It is necessary to make some preliminary findings concerning another property, situated in Goldsworthy Street, insofar as it bears on Ms Walsh’s state of mind when making the disclosures about the Ward Street property. A third property, situated on Flinders Street and utilised by visiting doctors, has lesser relevance.

65    As at 22 March 2012, Ms Le Bois resided in the Goldsworthy Street property. As I have mentioned, Ms Le Bois was entitled to be provided with accommodation under her contract of employment at UTHSAC’s expense. Notwithstanding that entitlement, Ms Le Bois had, since the commencement of her employment a few months prior, paid $100 per week to UTHSAC as rent. On 22 March 2012, Ms Borrett advised Ms Walsh that Ms Le Bois would no longer be paying rent because she was entitled to rent-free accommodation as a part of her employment contract. Ms Borrett said that Ms Le Bois would continue to pay UTHSAC $100 to cover the costs of power, gas, telephone, internet and water. In an email to Mrs Larkins, Ms Walsh expressed concerns about that arrangement because she did not consider $100 to be sufficient to cover the bills. Ms Walsh expressed the view that Ms Le Bois should be refunded the payments she had made to UTHSAC and then be required to meet all of her own expenses. Mrs Larkins responded in terms admonishing Ms Walsh to not outwardly discuss Ms Le Bois’ entitlements because other staff had also discussed the matter and were now “questioning their entitlements”. That exchange is relevant background to Ms Walsh’s disclosures concerning the Ward Street property.

66    Ms Walsh was aware that Mrs Larkins was entitled to be provided with accommodation as a condition of her employment as UTHSAC’s CEO but she was unaware of the detail of that entitlement. Objectively, although Mrs Larkins had a contractual entitlement to be provided with accommodation, she did not have a contractual entitlement to live in a property owned by UTHSAC, nor to choose which of the properties owned by UTHSAC might be allocated to her.

67    As at 22 March 2012, Ms Walsh was aware that the Ward Street property had been allocated to Ms Ackland. She was also aware that Ms Ackland had been given approval by Mrs Larkins to work remotely from Adelaide and that, as a consequence, the Ward Street property stood vacant. She correctly believed the remote working arrangements were temporary and assumed that the vacancy at the property was also to be temporary.

68    Ms Walsh knew that the previous CEO of UTHSAC, Mr Michael Griffiths, had been “allocated” the property at Goldsworthy Street. She was not aware that CEOs employed prior to Mr Griffiths had resided at the Ward Street property. She formed the view that the house that was ordinarily to be allocated to the CEO had been “given” to Ms Le Bois by Mrs Larkins who had signed off on her “rent-free” terms of employment.

69    Mr and Mrs Larkins went on holidays in March 2012. They travelled to Bali with Ms Ackland and her children. They did not return until Friday 23 March 2012. On that day, at 3.55pm, Mrs Larkins sent an email to three UTHSAC directors, Ms Warrior, Mr Hunter and Mr Walker. She copied Ms Walsh in the email. The email stated:

Hi All

I wish to bring your attention to the urgent need for myself and Patrick to move into the Ward Street house.

The house will be under Patricks name as it provides an income for the property for the organisation. Because Patrick is already on an incentive package he’s able to rent the property under the government. We would like to proceed with this as soon as possible.

Can you please respond to this as soon as you can.

PS: Lexie can you pass this onto Pearl and Ian as I don’t have their email address. Cheers

70    The reference to Lexie is a reference to Ms Walsh and the references to Pearl and Ian are references to Ms Austin and Mr Crombie respectively. The “incentive package” referred to in the email is an entitlement Mr Larkins had, as an employee of SAPOL, to receive a rental subsidy. Mr and Mrs Larkins had been receiving the subsidy in respect of a privately rented dugout property in Coober Pedy.

71    I am satisfied that prior to 23 March 2012, Ms Walsh was unaware of the existence or nature of the SAPOL subsidy.

72    Ms Walsh believed that the move into the Ward Street property and the lease effecting it was being arranged without Mrs Larkins first obtaining the Board’s formal approval in circumstances where Board approval was in fact required. Her belief is consistent with what in fact occurred. Mr Larkins gave evidence to the effect that he and his family moved into the Ward Street property “immediately” after their return from holidays. He said “we decided to move and to finalise the details shortly after the move.” It is undisputed that the Larkins family moved into the Ward Street property without the Board first responding to Mrs Larkins’ email or approving the request made in it. It is also undisputed that by sending the email, Mrs Larkins intended that the members of the Board be made aware that she proposed to move into the Ward Street property. That was the purpose of the email.

73    Both Mr Larkins and Mrs Larkins gave evidence to the effect that it was necessary for them to move into the Ward Street property urgently, although the reasons given by them were not entirely consistent. That inconsistency may be put aside for the moment as there is no suggestion that Ms Walsh was told, at the relevant time, why the move should occur with the haste that it did.

74    Prior to sending her email to Board members late on the Friday afternoon, Mrs Larkins discussed her family’s proposed move into the Ward Street property with Ms Walsh. She instructed Ms Walsh to telephone a person named Kathy Tapley, a person Ms Walsh believed at the time to be responsible for organising accommodation for members of SAPOL. Email evidence confirms that Ms Walsh was indeed instructed by Mrs Larkins to contact Ms Tapley and to provide certain details of the proposed lease. On Mrs Larkins’ instructions, Ms Walsh sought a lease through Ms Tapley in Mr Larkins name for a period of two years.

75    Ms Walsh gave evidence-in-chief in the following terms:

… when Priscilla had told me in her office that that’s what she was going to do, she also told me that the house would be going into her husband’s name, and I didn’t think that was appropriate because he’s a director of the corporation, and that if – that I was to get in touch with Kathy Tapley from – at that stage I – she had said it was SAPOL, so – in regards to organising a lease for the property, and she told me at that stage that, ‘If they ask you if I’m entitled to housing, say no because if Patrick – if we leave it in my house, Patrick will lose his rental subsidy’ or whatever it is that he gets from SAPOL. I don’t even know what goes on with SAPOL, but that’s what she told me at that stage.

76    The phrase “leave it in my house” was clearly intended to be a reference to the house being in Mrs Larkins’ name. Ms Walsh was cross-examined on that basis.

77    Ms Austin gave evidence, which I accept, to the effect that on 24 March 2012 Ms Walsh disclosed to her that Mrs Larkins had given the instruction to lie to the housing authority. The claim that Ms Walsh was instructed to lie was also contained in the letter of 16 April 2012 from Ms Walsh’s solicitor.

78    The respondents submit that any such claims made by Ms Walsh were false.

79    The allegation that Mrs Larkins asked Ms Walsh to lie to a representative of SAPOL is a serious one. I nonetheless find Ms Walsh’s pleaded allegation to have been established to the requisite standard. Given the importance of this finding it is appropriate that I refer to some findings of objective facts that bear upon it:

(1)    Mrs Larkins’ email to the members of UTHSAC’s Board seeks to justify the arrangement of a lease in Mr Larkins’ name by pointing to a financial benefit inuring to UTHSAC. The benefit involved UTHSAC receiving rent because of Mr Larkins’ terms of employment with SAPOL, whereas that rent would not be received if the property was allocated directly to Mrs Larkins as CEO.

(2)    Mr and Mrs Larkins in fact sought to move into the Ward Street property because they wanted a more secure lease arrangement than they had under their existing private rental arrangement and sought a lease that was more secure than Mrs Larkins’ term of employment. That finding is consistent with evidence given by Mr Larkins. In his affidavit evidence he claimed that his family required a safe, reliable and stable home because the dugout in which they were living was cracked and poorly ventilated. In cross-examination he acknowledged that they wanted “security” in the sense that the lease could not be cut short as was often the case with other police accommodation. That was, he said, the “main” reason for the move. It was, I find, not an urgent reason, and yet Mrs Larkins considered it appropriate to instruct Ms Walsh to secure a lease over the property before the Board had been given any meaningful opportunity to scrutinise the reasons for, and terms of, the lease. The sense of urgency suggested in the email was, I find, designed to avoid the Board exercising any real scrutiny over the arrangement before the lease was secured in Mr Larkins’ name or otherwise to his personal benefit.

(3)    As directors, both Mr and Mrs Larkins were aware that funding to UTHSAC was secured for periods of 12 months at a time, and yet the proposed lease over the Ward Street property was to be for a term of two years. Mrs Larkins’ email to the Board did not disclose that the lease would be for period of two years, nor did it disclose the critical related motivation for the move as frankly stated by Mr Larkins in his evidence. Mrs Larkins’ failure to disclose those matters to the Board members, and her insistence that the move was “urgent” further evidences that she was motivated by a desire to advance and protect her own interests, not the interests of UTHSAC.

80    Although insufficient in isolation to prove Ms Walsh’s allegation, I consider these matters in combination lend support to Ms Walsh’s credible oral evidence about what Mrs Larkins had said. In light of all of the evidence, and having regard to the adverse credit findings I have made in these reasons against Mrs Larkins, I prefer the oral evidence given by Ms Walsh in respect of the so-called “SAPOL lie”.

81    Ms Walsh was cross-examined at some length about her state of mind concerning the Ward Street property. The respondents submit that her evidence changed course whenever she was challenged about the genuineness of and the reasonableness of her beliefs. The Court was invited to draw the inference that Ms Walsh demonstrated a willingness to alter her testimony when challenged. I decline to draw that inference. Viewed as a whole, Ms Walsh’s evidence was to the effect that she found the arrangements regarding the Ward Street property to be “concerning” and “confusing” and to require the scrutiny and approval of the Board for multiple, but not inconsistent, reasons. They were, in summary:

(1)    The lease in Mr Larkins’ name was proposed for two years and yet UTHSAC’s funding was only assured on a 12 monthly basis. Ms Walsh believed that a lease in Mr Larkins’ name would confer a “related party” benefit on him that he could personally enforce beyond the term of Mrs Larkins’ appointment.

(2)    Although other members of UTHSAC’s staff made rental payments directly to UTHSAC, UTHSAC had not granted them any right in a lease that would outlast the terms of their employment.

(3)    The grant of a lease to a director on any terms was, according to Ms Walsh, a matter that must be approved by the Board.

(4)    UTHSAC was a not for profit service that should not receive rental income pursuant to a leasehold on one of its properties.

(5)    Ms Walsh had been asked to lie to a State government representative in order to put the lease arrangements into effect.

(6)    Ms Walsh believed the CEO should reside in the Goldsworthy Street property because that is where the former CEO had resided, and yet Mrs Larkins had, she believed, “given” that property to her sister, Ms Le Bois, to live in “rent-free”.

(7)    Ms Walsh considered Ms Ackland’s absence from the Ward Street property to be temporary and was confused as to where Ms Ackland might later reside.

(8)    Ms Walsh considered the haste of the move deprived the Board of the opportunity to consider the possible implications of it.

(9)    Ms Walsh feared that as business services manager and company secretary she might be personally implicated in wrongdoing by arranging and signing off on the lease.

82    That list should be understood as a distillation of themes addressed by Ms Walsh in a disorderly and distracted way in her evidence.

83    In assessing Ms Walsh’s credit, I have borne in mind her status as a self-represented litigant who was required to act as her own counsel in the course of her examination-in-chief and her cross-examination. She did not have the benefit of counsel to adduce her evidence-in-chief in a tidy narrative. Instead, with the consent of the respondents, she gave evidence-in-chief prompted by mutually agreed topics read aloud by an officer of the Court. She tended to constantly track ahead or stray off course, particularly where topics were interrelated. She was visibly anxious in the course of her evidence and at times displayed considerable emotional distress. When challenged as to the objective reasonableness of any one particular concern, Ms Walsh did at times shift focus to another. Her responses sought in large part to explain one belief by reference to another. She demonstrated a resistance under cross-examination to have each of her beliefs challenged in isolation.

84    I consider these qualities are explained by Ms Walsh’s anxiety in presenting her case and the complex and interrelated nature of the issues in dispute. I do not consider her presentation to demonstrate an unwillingness to be truthful.

85    I am satisfied that Ms Walsh genuinely held the concerns I have summarised. I am also satisfied that she suspected that the circumstances indicated that there may have been a breach of the CATSI Act, and that there were reasonable grounds for so suspecting. I reject the respondents’ submission that it was “self-evident” that no breach of the CATSI Act had occurred.

86    A separate issue arises as to whether the information conveyed by Ms Walsh to directors in the meetings between 24 and 29 March 2012 was already known, or ought to have been known, by them in any event. The respondents rely on the terms of Mrs Larkins’ email to Board members dated 23 March 2012, extracted at [69] above. It concludes with a direction to Ms Walsh that she forward the message to Ms Austin and Mr Crombie because Mrs Larkins did not have email addresses for them. It is clear from the email that Mrs Larkins intended that it be received by all members of the Board at her own insistence.

87    In the series of meetings to which I will soon refer, Ms Walsh showed Mrs Larkins’ email to Ms Austin, Mr Crombie and Mr Hunter. In doing so she was, I find, doing no more than what she had been directed to do by Mrs Larkins. The mere fact that Mrs Larkins intended to move into the Ward Street property is, I find, information that was already known to the directors or ought otherwise to have been known to them by virtue of the email. The facts stated in the email should not, of themselves, be regarded as information that Ms Walsh “disclosed” to the Board within the meaning of s 466-1 of the CATSI Act.

88    Ms Walsh’s pleaded case is that she disclosed to the Board information to the effect that Mrs Larkins had moved into the property without first obtaining Board approval. Mrs Larkins’ email does not state when the move would occur, nor does it state that the move would occur whether or not the Board had an opportunity to enquire about or approve the move in all of the circumstances.

89    I find that Ms Walsh genuinely took the view that a formal and fully informed resolution of the Board approving the move was required before the move could occur and before any lease arrangement should be entered into. It is in that respect that I find a disclosure of “information” to have been made. The disclosure was not comprised merely of Ms Walsh showing the directors Mrs Larkins’ email (as she was required by Mrs Larkins to do), rather it comprised Ms Walsh asking the directors to consider the email in light of all of the surrounding circumstances, as Ms Walsh reasonably perceived them. I am satisfied that the surrounding circumstances were raised by Ms Walsh during the meetings with directors between 24 and 29 March 2012, in support of her suspicion that Mrs Larkins was acting improperly by moving into the property without first obtaining the Board’s approval. That is consistent with the manner in which Ms Walsh ran her case at trial. The case is made out.

The shade cloth invoice

90    While Mrs Larkins and Ms Ackland were on holiday together in Bali, Ms Walsh, in her capacity as business services manager, received an invoice for improvements to a property situated on Hospital Road in Coober Pedy. The property was not owned by UTHSAC. It was a private rental property at which Ms Ackland’s sister, Cynthia Avilla, resided. Ms Avilla was, at the time, employed by UTHSAC as a registered nurse.

91    The invoice was for the installation of shade cloth at the property. It required payment of the sum of $6,270.00. Ms Walsh formed the view that it was “outrageous” that money should be spent on improvements to a private rental property. She drove past the Hospital Road property to observe the works and was concerned that the invoiced amount was excessive in any event. She telephoned Mrs Larkins to voice her concerns.

92    At the time that she made the call, Ms Walsh was not aware of any quotation having been obtained for the works. She asked Mrs Larkins if she was aware of the expenditure. Mrs Larkins said she was not. In an email, Ms Walsh asked Mrs Larkins whether the invoice in respect of the Hospital Road property should be paid. Mrs Larkins said that it should be paid if it was consistent with any quotation given for the works, but instructed Ms Walsh to cancel arrangements for the installation of shade cloth at the doctor’s house.

93    Ms Walsh subsequently discovered that it was Ms Ackland who had signed off on the purchase order for the works in the amount quoted. Ms Walsh asked Mrs Larkins what would be done. Mrs Larkins said she would speak to Ms Ackland about it. When Ms Walsh suggested to Mrs Larkins that the expenditure be made known to and approved by the Board, Mrs Larkins sent an email to Ms Walsh in relevantly the following terms:

Hi Lexie,

Just remember that anything that’s got to do with day to day to day issues comes to me, please do not approach the board. This is in regards to the shade cloth issues. It’s a concern that I will deal with when I get back. Thanks.

94    It was not suggested by Mrs Larkins in these proceedings that she discussed the issue in a disciplinary way with Ms Ackland. Indeed, the tenor of Mrs Larkins’ evidence was that the expenditure was a day to day operational issue and one for her alone to decide as CEO, having regard to her perceived responsibility to provide Ms Avilla with comfortable living conditions.

95    When Mrs Larkins returned from leave on 23 March 2012, Ms Walsh asked her whether she had discussed the shade cloth issue with Ms Ackland. Mrs Larkins said she had not.

96    Ms Walsh gave evidence (which I accept) to the effect that she had the following concerns:

(1)    the expenditure had been approved by Ms Ackland, being the sister of the occupant of the property;

(2)    the works had been undertaken and payment authorised in contravention of UTHSAC’s financial delegations policy which, among other things:

(a)    prohibited a financial delegate from authorising expenditure from which they might benefit personally;

(b)    required expenditure to relate to official purposes;

(c)    required expenditure to appear reasonable; and

(d)    required financial delegates to have due regard to budget limitations.

(3)    the expenditure was excessive and not budgeted for;

(4)    the works had been undertaken by a person who Ms Walsh had been told was a member of Ms Ackland’s church and it appeared that no other quotations had been sought;

(5)    the expenditure was for the improvement of a property that UTHSAC did not own; and

(6)    by not raising the issue with Ms Ackland, Mrs Larkins was condoning a wrongful expenditure and ignoring the requirements of the financial delegations policy.

97    I am satisfied that these concerns were in fact held by Ms Walsh and that they formed the basis of a genuine suspicion that Mrs Larkins may have breached the CATSI Act. There was an objectively reasonable basis in all of the circumstances for that suspicion.

98    As with all of the disclosures, it was submitted that it was self-evident that no breach of the CATSI Act by Mrs Larkins had occurred in connection with the shade cloth. I do not agree.

99    Mrs Larkins told the Court that she gave Ms Ackland the task of arranging the works. She also acknowledged that she had been made aware that the quotes that had been obtained in respect of both the Hospital Road property and the doctor’s residence (the second quotation being in the same amount), that Ms Ackland had informed her of the cost and that they had discussed the matter. She said that she had pre-approved the expenditure, even though the quotes were “high”. She sought in her evidence to justify the expense by describing how hot Ms Avilla’s house could become in Coober Pedy’s extreme heat and by explaining how difficult it could be to obtain quotes for building work.

100    Notwithstanding that evidence, in telephone and email communications between Mrs Larkins and Ms Walsh, Mrs Larkins conveyed the clear impression that she was unaware that a quotation had been obtained for the works and denied knowledge that works had been contracted for at all.

101    When asked to explain her communications with Ms Walsh, Mrs Larkins said that at the time she sent the messages she had not remembered her own involvement in approving the works. Counsel for Mrs Larkins submitted that Mrs Larkins was merely confused in this aspect of her evidence. I reject the submission. I consider it highly improbable that Mrs Larkins should forget the extent of her earlier involvement at the time of her communications with Ms Walsh, and yet recall the detail of her involvement without any difficulty when giving evidence at the trial. I find that Mrs Larkins was untruthful in her responses to Ms Walsh when asked in March 2012 whether she knew anything about the installation of shade cloth at the Hospital Road property. Clearly, Mrs Larkins was involved in the commissioning of the works, to the point of being informed of the “high” quotations before the works commenced. Her conduct in warning Ms Walsh not to approach the Board about the issue is to be viewed in that context. I do not accept Mrs Larkins’ evidence that she merely considered the installation of the shade cloth to be a day to day issue that the Board need not be concerned with. Mrs Larkins was personally implicated in what might reasonably be suspected to be an excessive expenditure benefiting the sister of her close friend. In all of the circumstances, it is not at all “self-evident” that no breach of the CATSI Act had occurred in relation to this issue.

102    I emphasise that not all of the circumstances to which I have just referred were known to Ms Walsh at the time of the relevant disclosure. To the extent that they were not known they are not, of course, relevant to my assessment of Ms Walsh’s own state of mind at the relevant time. However, even by reference to Ms Walsh’s more limited knowledge, it was not at all self-evident that no breach of Mrs Larkins’ duties to UTHSAC had occurred.

103    My findings in relation to Mrs Larkins’ involvement in the shade cloth issue reinforces my earlier assessment that Mrs Larkins lacked insight into the importance of managing the risks inherent in her personal friendship with Ms Ackland and the other relationships to which I have referred. That lack of insight explains to some degree why Mrs Larkins subjectively believed, and continues to believe, that Ms Walsh is, and remains, a troublesome busybody. I will return to this issue later in these reasons.

The Toyota Prado purchase

104    Under her written contract of employment, Mrs Larkins was entitled to be provided with a company vehicle for business and private use. The employment contract does not specify any type or value of vehicle, nor does it specify any conditions concerning the frequency of the vehicle’s upgrade.

105    Prior to March 2012 Mrs Larkins was provided with a Mitsubishi Pajero for work and personal use under the terms of her employment. On 3 November 2011, Ms Borrett obtained a quote from a car dealer for the purchase of a new Toyota Prado for Mrs Larkins’ business and private use at a purchase price of $59,804.70. The quotation provided for the trade-in of the Pajero for $30,000.00 and included about $5,000 of optional extras including tinted windows, a bull bar and a DVD player. On the following day, Ms Borrett and Mrs Larkins co-signed a purchase order. The purchase order contained an instruction to the dealer to “go ahead with the trade-in and purchase” in accordance with the quote.

106    On 16 March 2012, the dealer sent an invoice to UTHSAC for the purchase price of the Prado, less the Pajero’s trade-in value. Ms Paz, a finance officer employed by UTHSAC, facilitated the payment of the dealer’s invoice by way of an electronic bank transfer. The payment of invoices by way of bank transfer required two signatories. Ms Walsh was a co-signatory on the banking documents prepared by Ms Paz.

107    Ms Paz obtained a “provision budget code” from UTHSAC’s accountant which she wrote on the face of the invoice, together with the words “Provision New CEO Vehicle”. Ms Walsh was copied in on an email in which the involvement of UTHSAC’s accountant and the giving of a “provision budget code” was discussed. She expressed no concerns about the purchase at the time of receiving the email.

108    Ms Walsh’s knowledge and beliefs in connection with this purchase is disputed.

109    I am satisfied that Ms Walsh was not aware of the decision to purchase the Toyota Prado until January or February 2012 when she first heard Ms Borrett discussing it, although she did not raise any concerns about the purchase with Ms Borrett or Mrs Larkins at that time. She said she believed that vehicles could not be purchased without the approval of the Board unless the expenditure was provided for in a Board-approved budget. She acknowledged that payment for the vehicle had, to her knowledge, been made out of a “provisions account”. She said she believed the “provisions account” to be a source of funds that were set aside only for emergency purchases or repairs.

110    Ms Walsh further claimed that the purchase contravened UTHSAC’s financial delegations policy because it had been approved by Mrs Larkins, a person who stood to benefit personally from it. She said that the trade-in of the Pajero was governed by UTHSAC’s policy concerning the disposal of assets. She understood that policy to require that a person who recommended the disposal of an asset not be the same person who approved the disposal “for probity reasons”. Her subjective understanding of the requirements of the two policies is generally in accordance with their terms.

111    In her evidence-in-chief, Ms Walsh claimed she “did not have anything to do with [the] purchase” of the Prado. She said that there had previously been no vehicle trade-ins during her term of employment.

112    Evidence was given by a number of the respondents’ witnesses to the effect that the upgrade or trade-in of vehicles was commonplace in an organisation such as UTHSAC, particularly upon the vehicles reaching a specified age or odometer reading. Even if that be the case, it does not detract from Ms Walsh’s stated belief that this particular upgrade was one that ought to have been budgeted for or that otherwise required the approval of the Board, and that it in any event indicated wrongdoing on Mrs Larkins’ part. I do not consider Ms Walsh was in any way untruthful in stating her beliefs concerning whether the upgrade of Mrs Larkins’ vehicle had been provided for in any budget previously approved by the Board. I consider her beliefs in that regard to have been genuinely held and reasonably based, irrespective of whether UTHSAC upgraded its vehicles at regular intervals.

113    It was then put to Ms Walsh that she had been neither truthful nor accurate in relation to her understanding of what the word “provision” meant, in accounting parlance. Ms Walsh frankly admitted she was not an accountant. She repeated her belief that the funds for the purchase of the vehicle had been recorded against a provisions account, which meant that the money had been drawn from a sum of money budgeted and set aside for use only in relation to emergency purchases or repairs. It was not demonstrated by the respondents that Ms Walsh’s subjective understanding of the word “provision” or the concept of a “provision account” was not in fact held by her nor that her belief was an unreasonable one in all of the circumstances. Indeed, Ms Walsh’s subjective belief concerning the term “provision” is consistent with Mrs Larkins’ subjective understanding: “funds ... kept aside for any other repairs and maintenance or emergency costs that may be required”. Objectively, the purchase of the Prado was not a repair. Nor was it necessitated by an emergency.

114    Ms Walsh was shown to have been incorrect in her evidence that there had been no previous vehicle trade-ins during the period of her employment. I am satisfied that she was in fact involved in the purchase of two vehicles, a Toyota Hiace and a Toyota Workmate in November 2011 and February 2012 respectively. In each case, the trade-in of another UTHSAC vehicle had been involved. On neither occasion had the specific purchase or trade-in been put to the Board for approval. Although it was suggested by the respondents that Ms Walsh was involved in the purchase of a third vehicle, proof of her involvement in that particular purchase was not established.

115    Ms Walsh gave evidence, which I accept, that she believed that the Hiace and WorkMate were purchased for the purposes of UTHSAC’s clinical or health promotion activities. She said that the first of the vehicles required replacement because it had been irreparably damaged by contaminated petrol. I am satisfied that Ms Walsh genuinely believed the expenditure for those vehicles to have been provided for in the budget approved by the Board for UTHSAC’s operations or otherwise justified in her mind as a provision. She was nonetheless careless in giving evidence-in-chief to the effect that there had been no other vehicle purchases or trade-ins while she was employed by UTHSAC. In cross-examination she accepted her evidence-in-chief was incorrect in that respect. She said that she had forgotten about the other purchases when giving her evidence-in-chief. I accept that explanation in light of her presentation as a witness as a whole.

116    Ms Walsh was also incorrect in her absolute statement that she “did not have anything to do with [the] purchase” of the Prado itself. However, when considered in context, I do not consider that statement to have been as absolute as the respondents contended. The overall tenor of Ms Walsh’s evidence was that the purchase of the Toyota Prado was committed to when Mrs Larkins and Ms Borrett signed the purchase order. That is not an unreasonable view for Ms Walsh to have adopted. Indeed, I consider her view to be an objectively correct one. As at March 2012, the vehicle was built to Mrs Larkins’ specifications and payment of the invoice was required. The invoice was not an offer that could be refused by UTHSAC, let alone by Ms Walsh. I do not consider Ms Walsh’s actions in co-signing an authorisation for the electronic transfer of funds for payment of the invoice to detract from her evidence that she genuinely held concerns of the kind she described about the purchase. Viewed in context, her statement that she had nothing to do with the purchase should be understood as intended to distance herself from the purchase decision, not the necessary payment of the resulting invoice.

117    Notwithstanding the shortcomings in some aspects of her evidence, I am satisfied that Ms Walsh did believe, at the relevant time, that the Prado purchase may have been in contravention of UTHSAC’s policies concerning financial probity and accountability and that there may have been a breach of the CATSI Act for the same reasons. I am also satisfied that Ms Walsh genuinely considered it necessary for the Board to approve the purchase because it had not previously been approved by way of a budget making any specific allowance for it. The objective circumstances (particularly the exclusive involvement of Mrs Larkins and Ms Borrett in the purchase decision) are sufficient to provide a reasonable foundation for Ms Walsh’s suspicions.

118    Relatedly, Mrs Larkins claimed that there was no breach of UTHSAC’s financial accountability policies because Ms Walsh had been given the responsibility for obtaining approval for the purchase. She stated that approval for the purchase of a vehicle could be sought directly from UTHSAC’s funding body and that when she “looked at purchasing” the vehicle she considered it to be Ms Walsh’s duty to seek approval from the funding body for it. She said that she had received “confirmation” from Ms Walsh that authorisation for the purchase had been obtained. When asked by Ms Walsh how the confirmation had been given, Mrs Larkins said “I’m not sure. I – it has been so many – been a long time ago. I can’t remember”. It is difficult to see how Ms Walsh could have given any such confirmation in circumstances where it was neither suggested nor proven that Ms Walsh was even aware that a quote had been sought and accepted.

119    Mrs Larkins then gave evidence to the effect that it was for Ms Walsh to approve the purchase and trade-in of vehicles pursuant to a generalised authority that Mrs Larkins’ had given orally to her, at a time that Mrs Larkins could not recall. Even if a general authorisation had been given to Ms Walsh in respect of the purchase and trade-in of vehicles, there is nothing to suggest that Ms Walsh ever “approved” the purchase of the Toyota Prado in the relevant sense. I reject this aspect of Mrs Larkins’ case. The vague and unsubstantiated claim that Ms Walsh had in any way authorised, or should otherwise have obtained prior authorisation for the purchase was, I find, contrived by Mrs Larkins to diminish the significance that the decision had been made personally by her without prior independent authorisation. Mrs Larkins’ attempts to advance that claim reflects poorly on her credit as a witness.

Ms Ackland’s working arrangements

120    In early February 2012, Mrs Larkins gave Ms Ackland approval to work remotely from Adelaide. Although Mrs Larkins gave evidence at the trial concerning her reasons for making that decision, it was not suggested that her reasons were known by Ms Walsh at the time that the disclosures were made.

121    Mrs Larkins notified the Board that Ms Ackland had been authorised to work remotely at a meeting on 8 February 2012 and the issue was raised again on 14 March 2012. The fact of Ms Ackland working remotely was known to all members of the Board by mid-March.

122    Ms Walsh strongly opposed the decision to allow Ms Ackland to work remotely. She gave evidence to the effect that she had a number of concerns about the implications of the decision for UTHSAC. In broad summary, Ms Walsh said she believed the decision had potential financial and occupational health and safety ramifications and suggested that other staff under Ms Ackland’s supervision were resentful of the decision. She gave examples of some clinical matters which she believed were adversely impacted by Ms Ackland’s absence. I accept Ms Walsh’s evidence to the extent that she in fact held all of those beliefs.

123    However, when pressed about how the decision indicated that there may have been a breach of the CATSI Act, Ms Walsh was vague in her response. She acknowledged that Mrs Larkins told the Board about the arrangements, but claimed that it was necessary for the Board to formally approve the arrangements by way of a resolution voted on by a quorum of members who did not have a conflict of interest in scrutinising Mrs Larkins’ decisions as CEO. She said that no such quorum had been present at the February and March Board meetings. It is apparent that Ms Walsh believed that the Board had not given sufficient consideration to the clinical and financial ramifications of the decision. Her evidence in respect of this issue was ultimately to the effect that she strongly disagreed with Mrs Larkins’ decision and believed that the issue could and should have been “discussed more” and, by implication, reversed by the Board.

124    I have already observed that there was a reasonable basis for Ms Walsh’s belief that the Board was comprised of members whose interrelationships were such that it would have been difficult or impossible to find a quorum of members who would not have a conflict of interest in scrutinising the conduct of Mrs Larkins in her role as CEO. But that is not sufficient to prove this aspect of Ms Walsh’s pleaded case.

125    The test for a reasonable suspicion under s 466-1 of the CATSI Act is, as I have said, a very low one. I nonetheless conclude that Ms Walsh did not have the requisite reasonable suspicion in respect of the information forming the subject matter of this particular pleaded disclosure. Whilst I accept that Ms Walsh had a reasonable basis for believing that the Board should have been given the opportunity to reverse Mrs Larkins’ decision, the circumstances were not such as to objectively indicate (even at the level of a suspicion) that a breach of the CATSI Act had occurred. This disclosure lacks the element of suspected impropriety attending the other disclosures.

126    In so concluding, I have borne in mind that particular information that is seemingly innocuous might, when viewed in the context of other information, support a suspicion that the CATSI Act may have been breached. However, even when viewed in the context of all of the other pleaded disclosures, the evidence showed only that Ms Walsh disagreed at an operational level with the decision to allow Ms Ackland to work remotely and she believed that it was in the best interests of UTHSAC that the Board scrutinise and overturn it. Ms Walsh’s expression of opinion that the decision was a wrong one is not to be regarded as information within the meaning of s 466-1 of the CATSI Act. Nor did her disagreement in fact amount to an actual suspicion that the CATSI Act may have been breached.

DISCLOSURES TO DIRECTORS

Disclosures to Ms Austin, Mr Crombie and Mr Hunter

127    Ms Walsh discussed her concerns about Mrs Larkins in a series of informal discussions with Ms Austin on 24 March 2012, Mr Crombie on 25 March 2012, Mr Hunter on 27 March 2012 and all three of them on 29 March 2012.

128    At the time of the trial, Mr Crombie had resigned as a director of UTHSAC. He was not called as a witness by any party. On her application to re-open the trial, Ms Walsh submitted that she had been misled by the respondents into believing Mr Crombie would be called as a part of their case. I do not consider it necessary to rule on that question and I do not otherwise draw any inference in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298 in respect of Mr Crombie’s absence as a witness in the proceedings.

129    On or around 24 March 2012, and at the suggestion of Ms Austin, Ms Walsh telephoned Ms Wiseman, the same consultant who had delivered governance training to UTHSAC directors upon its transition to governance under the CATSI Act. Ms Walsh asked Ms Wiseman for advice concerning the disclosures, including advice as to how the Board should respond.

130    Ms Wiseman prepared a document summarising the issues that Ms Walsh raised with her. The document contains a series of questions the Board should ask in relation to a range of subject matters. The document was emailed to Ms Walsh on 25 March 2012. It is titled “Concerns regarding actions by the CEO that are occurring and possible consequences for the Board of Directors”. I will refer to it as the Wiseman document.

131    On 29 March 2012, Ms Walsh received a telephone call from Mr Hunter. Mr Hunter invited Ms Walsh to meet with him, Mr Crombie and Ms Austin at the local roadhouse to discuss her concerns with the three of them. Ms Walsh was concerned about meeting in a public place, and suggested that they meet instead on a site owned by Opal Miners Enterprises Incorporated (OMEI). When they met at OMEI later that day, the three directors discussed the Wiseman document and Ms Walsh again disclosed and gave details of the concerns she had about Mrs Larkins. Ms Walsh attended the OMEI meeting with a copy of the UTHSAC Fraud and Corruption Policy. She said words to the effect that she was making disclosures in accordance with the policy.

132    I am satisfied that the concerns and information disclosed in the course of the four meetings occurring between 24 and 29 March 2012 are consistent with the evidence given at trial about the subject matter of each disclosure. In arriving at that conclusion I have not overlooked the circumstance that the Wiseman document refers to Mr Larkins’ SAPOL entitlements but does not contain any statement to the effect that Mrs Larkins had asked Ms Walsh to “lie” if asked, about Mrs Larkins’ own employment entitlements. I have nonetheless accepted the evidence of Ms Walsh and Ms Austin to the effect that the “lie” issue was indeed raised with the three directors.

133    Ms Walsh also raised with the three Board members the question of conflicts of interests affecting the administration of UTHSAC. As I have said, although the subject matter of perceived nepotism and favouritism was not among the specific disclosures pleaded in the SOC, the potential for nepotism and favouritism was nonetheless relevant to the Board’s assessment of the more specific concerns that Ms Walsh had raised and bears on the question of whether Ms Walsh acted in good faith.

Solicitor’s correspondence

134    Ms Walsh’s pleaded case is that she also made the disclosures by way of a letter addressed to UTHSAC dated 16 April 2012. The letter responds to allegations that Ms Walsh had engaged in serious and wilful misconduct in connection with events that occurred on 2 April 2012. The letter recounts the substance of the disclosures and asserts that the disclosures explain and justify Ms Walsh’s conduct on that day. The language in the letter fairly indicates that it is intended to be read and considered by Mrs Larkins who at that stage had required Ms Walsh to show cause why her employment should not be terminated. The respondents submit that the letter does not constitute a protected disclosure for the purpose of s 466-1 of the CATSI Act. I do not agree. The letter should be fairly understood as one directed to the attention of all of those involved in the governance of UTHSAC. The substance of the allegations raised in the letter were subsequently brought to the attention of the UTHSAC Board in circumstances I describe below.

GOOD FAITH

135    I deal first with the allegation that Ms Walsh’s conduct was not confined to a disclosure for the purposes of the CATSI Act, but was instead a course of conduct against Mrs Larkins in which Ms Walsh was the “prime mover”. The allegation was founded upon:

(1)    the contention that it was self-evident that Mrs Larkins had not contravened the CATSI Act;

(2)    Ms Walsh’s conduct at and in relation to a meeting on 2 April 2012;

(3)    Ms Walsh’s conduct in obtaining and retaining documents in the days preceding that meeting; and

(4)    the alteration by Ms Walsh of draft minutes of a Board meeting held on 8 March 2012.

136    I have already dealt with the first of those issues in connection with the Ward Street property, the shade cloth issue and the Prado purchase.

137    I have found that the disclosure concerning Ms Ackland’s working arrangements does not fall within s 466-1 of the CATSI Act. My finding that this disclosure was not protected does not equate to a finding that the disclosure was made in bad faith, only that this subject matter of the disclosure did not bear sufficient connection to a suspected breach of the CATSI Act. I do not otherwise consider Ms Walsh’s conduct in raising her concerns about Ms Ackland’s remote working arrangements to evidence a lack of good faith in relation to any other disclosure. Ms Walsh’s subjective concerns were closely connected with the operations of UTHSAC and fairly reflected the disadvantages inherent with allowing the director of clinical services to be physically absent from the workplace. I am satisfied that in raising her concerns, Ms Walsh was motivated by purposes entirely consistent with the good management of UTHSAC and not by any extraneous consideration. The mere fact that Ms Walsh was critical of Mrs Larkins’ decision does not, in and of itself, demonstrate a lack of good faith on Ms Walsh’s part.

138    The remaining issues are to be considered in light of all of the circumstances in which the disclosures were made. In that regard, I make the preliminary observation that Ms Walsh was particularly conscious of the risk that in making the disclosures she may be subject to victimisation by Mrs Larkins and members of her family. I am also satisfied that Ms Walsh considered herself obliged to raise the concerns that she did and that she expressly discussed her vulnerable position with the three directors to whom she made the disclosures. She was conscious of her rights to be protected as a “whistle blower” and expressly sought the support and protection of the three directors to whom the disclosures were made.

139    In relation to the contention that Ms Walsh was intent upon intermeddling with the affairs of Mrs Larkins, it is difficult to identify any “affairs” of Mrs Larkins affected by the disclosures that are not intricately connected with the affairs of UTHSAC itself. There is nothing in Pt 10-5 of the CATSI Act that requires a discloser to show that their suspicions were limited to matters falling within the sphere of their own authority within the corporation.

The 2 April meeting

140    At the meeting at OMEI on 29 March 2012, Mr Hunter told Ms Walsh to arrange for a Board meeting to be convened for the following Monday, 2 April 2012. I will refer to that meeting as the 2 April meeting. The date for the meeting was decided after Ms Walsh informed the directors that Ms Ackland would be in Coober Pedy on that day. I am satisfied that the meeting was arranged with the concurrence of the three directors who were present.

141    The question of whether Mr Hunter called the 2 April meeting was the subject of considerable dispute at trial. I prefer the evidence of Ms Walsh over that of Mr Hunter in respect of that discrete issue, not least of all because I regard the testimony given by Mr Hunter to be unconvincing and unreliable. The finding that Mr Hunter called the 2 April meeting is consistent with the evidence of Ms Austin and with later communications between Mr Hunter and a government regulatory body concerning Ms Walsh’s disclosures. It is also consistent with his failure to make any statement correcting Ms Walsh’s email to all of the directors on 2 April 2012 which clearly indicated that the meeting had been called at the request of the Board: see [145] below. Ms Walsh’s denial that she called the meeting is not inconsistent with the manner in which the meeting itself was conducted. The recording indicates that Mr Hunter was a willing participant in the meeting from the outset and that he well knew of its purpose. I infer from the recording that Mr Hunter was not surprised by the meeting being called and that he shared in the view that there were legitimate issues that had been raised that required investigation. All of that is consistent with Mr Hunter having been instrumental in the meeting being called.

142    After first giving affidavit evidence that he was “certain” he did not call the meeting, Mr Hunter told the Court that he felt pressured to call the meeting by Ms Walsh. I consider Mr Hunter to have tailored much of his evidence so as to avoid criticism by Mr and Mrs Larkins (persons he claimed in evidence to be his friends), to distance himself from the central conflict, and to otherwise harm Ms Walsh in the presentation of her victimisation case. When asked to explain other evidence that tended to suggest that he had previously made a statement that he had called the meeting, he said “All I can think of is trying to cover up for people”. His earlier evidence that he was “certain” he did not call the meeting is not accepted.

143    The allegation that it was Ms Walsh who called the meeting formed a large part of the respondents’ case that she was a “prime mover” in a “witch hunt” against Mrs Larkins. That part of the respondents’ case is not made out on the evidence. I am satisfied that the three directors responded to Ms Walsh’s disclosures with expressions of shared concern. They together decided on a course of action to obtain information, including from Ms Ackland, and to otherwise make enquiries of the kind suggested in the Wiseman document. The three directors intended that all members of the Board would participate in those steps by attending a formally convened meeting at which a course of action could be decided on and they utilised Ms Walsh in her role as company secretary for the practical purpose of obtaining information and arranging the meeting.

144    To the extent that Ms Walsh was practically instrumental in making arrangements for that meeting, she did so in accordance with the suggestions and instructions of the directors to whom she had made the disclosures. It is against that background that the conduct of Ms Walsh in participating in the 2 April meeting is to be considered.

145    The directors agreed that Ms Walsh should prepare a list of questions that could be put by the Board to Ms Ackland, which Ms Walsh did. It was also agreed that Ms Walsh should obtain information from UTHSAC’s external accountants in preparation for the meeting, including a copy of Mrs Larkins’ employment contract. Ms Walsh did in fact obtain information from the external accountants in preparation for the meeting, including a copy of Mrs Larkins’ employment contract. Once she had done so, she asked Mr Hunter if she should go ahead and advise the other Board members that the meeting was called. Mr Hunter confirmed that she should. Ms Walsh then sent an email to the UTHSAC directors (including Mr Hunter) titled “Request for Meeting Today by the Chairperson”. It states:

Good morning Directors

Sorry for the short notice but I have been requested by the Chairperson to call a meeting for 3.30pm today. If you are unable to attend can you please advise me as soon as possible.

Thanks

146    Mrs Larkins was not copied in to the email. She nonetheless learned of it through some of its other recipients.

147    Notably, Mr Hunter did not send any reply email or other message correcting the statement that the meeting was being convened at his request as chairperson.

148    There followed a series of telephone and personal discussions between particular directors and Mrs Larkins in which they attempted to discern the purpose of the meeting. I am satisfied that Mr Hunter was approached by both Mr Larkins and another director, Mr Walker, both of whom enquired about the purpose of the meeting and both of whom urged Mr Hunter not to proceed with it.

149    Ms Warrior and Mr Walker contacted Ms Walsh to enquire about the purpose of the meeting. Ms Walsh did not provide any agenda and nor did she give a frank response to Ms Warrior or Mr Walker. Nor did Ms Walsh give Mrs Larkins any information about the purpose for which the meeting was being called. She gave the following evidence, which I accept, about a telephone call in which Mrs Larkins (who was in Darwin at the time) pressed her for an explanation about the reason for the meeting:

Priscilla rings me not long after that and she rings me from Darwin and she said, ‘What’s going on, Lexie?’ And I’m there, ‘What? The chairperson has called for a meeting’, and she said, ‘Well, what’s going on?’ and I said, ‘Look, Priscilla, I take direction from you as business services manager, but as company secretary I take direction from David Hunter, so you’re going to have to talk to him’, because by this time I was starting to be really scared about what was going on. I’m sorry. Because I started thinking ‘I’m not going to be protected here, anyway.’ So – and I said ‘So I can’t – I don’t – you are going to have to talk to the chairperson,’ and she said ‘Is that right?’ She goes ‘Well, we will see about that.’ And I said to her ‘Are you threatening me, Priscilla?’ And then she just hung up on me.

150    I find that Ms Walsh was, at the time of that call, concerned that directors who were friends or relations of Mrs Larkins would “boycott” the meeting if they learned in advance that Ms Walsh had made disclosures about Mrs Larkins’ conduct as CEO.

151    In the event Mr Larkins, Ms Warrior and Mr Walker did not attend.

152    Prior to the meeting, Ms Walsh instructed Ms Paz to ensure that no person entered the Boardroom during the course of the meeting. Ms Paz alleges that Ms Walsh specifically instructed her to fix hazard tape over the opening to the Boardroom door. Ms Walsh denied giving any such instruction, but she nonetheless freely acknowledged that when she later saw hazard tape across the door she thought it was a good idea. She did not remove it.

153    I digress to consider the respondents’ submission that Ms Walsh should be found to have been untruthful in her evidence that she did not instruct Ms Paz to put hazard tape over the Boardroom door. I assess Ms Paz’s evidence against the circumstance that she later came to learn that the tape had been photographed by Ms Warrior (a director) who sent the photograph to Mrs Larkins. Ms Warrior quizzed Ms Paz about it. I find that Ms Paz told Ms Warrior that it was Ms Walsh’s decision to tape the door and that she did so to minimise any suggestion of her own involvement in Ms Walsh’s conduct, which she knew to be controversial. It was put to Ms Paz that she had tailored her evidence so as to remain consistent with what she had told Ms Warrior at the time. Her denial that she had done so was unconvincing. I prefer the account given by Ms Walsh on this topic. It was nonetheless open to Mrs Larkins to accept the word of Ms Paz when later considering these issues. Otherwise, little of substance turns on the issue.

154    The 2 April meeting was attended by Mr Hunter, Mr Crombie, Ms Austin and Ms Walsh. I am satisfied that those directors present determined it appropriate that Ms Ackland be summoned to answer the questions that Ms Walsh had prepared. It was in that context that Ms Walsh approached Ms Ackland and asked her to attend at the meeting to answer questions. Ms Ackland was not given prior notice of the meeting, nor was she told anything about its purpose. She was brought into the Boardroom by Ms Walsh, both of them passing under the hazard tape.

155    Ms Walsh then activated a digital audio recorder. The participants introduced themselves for the purposes of the audio recording and the meeting began. I infer in all of the circumstances that the audio recording of the 2 April meeting was made with Ms Ackland’s knowledge. She voiced no objection to the making of the recording and announces her own presence for its purpose. So much may be inferred from the content of the audio recording itself.

156    Broadly stated, the meeting progressed by way of Mr Hunter, Mr Crombie, Ms Austin and Ms Walsh in turn putting questions to Ms Ackland which, for the most part, were read from the list of questions prepared by Ms Walsh. The questions concerned Ms Ackand’s remote working arrangements and the apparent conflicts of interest affecting decisions to employ personnel in the UTHSAC clinic who were related to Mrs Larkins or Ms Ackland. Early in their exchanges, Ms Walsh addressed Ms Ackland in a brittle fashion, particularly when challenging Ms Ackland’s stated belief that her remote working arrangements had been approved by the Board.

157    Ms Ackland gave frank and calm responses to the questions directed at her. I accept the evidence given by both Ms Walsh and Ms Austin to the effect that Ms Ackland was not upset. There is nothing in the audio recording to suggest otherwise.

158    During the course of the meeting, Mrs Larkins telephoned Mr Hunter. She told him to abort the meeting. At that time, Mrs Larkins had become aware that Ms Ackland had been summoned to the meeting and that there was hazard tape fixed to the Boardroom door to prevent others from entering. She had received telephone calls from Ms Warrior and Mr Larkins to that effect. Mrs Larkins telephoned a human resources consultant, Dianne Jacobs, for advice.

159    After she had left the meeting, Ms Ackland telephoned Mrs Larkins and told her what had occurred. Mrs Larkins dictated a letter addressed to Ms Walsh which Ms Ackland typed. She instructed Ms Ackland to hand the letter to Ms Walsh. The letter informed Ms Walsh that her employment was suspended, effective immediately.

160    Ms Walsh’s employment was terminated on 20 April 2012 for “serious misconduct” relating to her involvement in the 2 April meeting.

161    The circumstances surrounding the 2 April meeting do not indicate a lack of good faith on Ms Walsh’s part in connection with her earlier disclosures. Rather, the circumstances indicate that Ms Walsh was a participant in what may fairly be described as a hapless and ill-considered inquiry that Mr Hunter, Mr Crombie and Ms Austin decided to embark upon, with Ms Walsh’s assistance. Ms Walsh’s actions are consistent with her stated concerns to ensure that UTHSAC was properly governed. Although I am satisfied that Ms Walsh desired the very kind of intervention by the directors that occurred on 2 April 2012, and although she did not want Mrs Larkins to interfere with the meeting, her motivations in that regard do not indicate any dishonest or malicious intent.

Revised draft minutes

162    In her role as company secretary, Ms Walsh prepared minutes of Board meetings, including those conducted on 8 February 2012 and 14 March 2012. The 8 February 2012 minutes contain this statement: “The CEO also advises that Arlene Ackland will be working remotely for the next 2 — 3 months due to personal reasons. The Directors agree to support Arlene during this time”. Mr Hunter and Mr Crombie were not in attendance at that meeting.

163    There is, in evidence, an unsigned draft of the minutes of the meeting of 14 March 2012. The draft contains, at [6.2], the following statement: “In ... the last minutes there was not a resolution made to support the CEO’s request to allow the Director of Clinical Services to work remotely for 3 months due to personal issues. The Directors will make a motion to support this at the next meeting.”

164    There is also in evidence, a version of the minutes of 14 March 2012 signed by Mr Hunter on 27 March 2012. In the signed version, it is also noted that there had been no resolution made at the previous meeting to support the CEO’s request to allow Ms Ackland to work remotely. It is then noted “The Directors are seeking further clarification on what the Director of Clinical Services will be doing while she is working remotely and if this will have any significant financial burden on the Organisation.”

165    It is not disputed that between the time that the first draft of the minutes was prepared and the time that Mr Hunter signed the minutes, Ms Walsh amended the draft in the manner indicated. I am satisfied that Ms Walsh made the amendment to the draft minutes at a time when she had formed the intention to raise that particular issue at a subsequent Board meeting. The respondents invite the Court to find that Ms Walsh’s conduct in revising the draft minutes before asking Mr Hunter to sign them evidences not only her role as a “prime mover” in a campaign against Mrs Larkins, but also evidences an attempt by Ms Walsh to build an evidentiary foundation for the case that she wished to advance in contemplated proceedings such as these.

166    The final version elaborates on the previous draft but is not inconsistent with it. It has not been shown that the revision Ms Walsh made to the minutes was a falsified account of the events that had occurred at the meeting of 14 March 2012.

167    Ms Walsh’s conduct in revising the draft is consistent with her genuinely held belief that Ms Ackland’s remote working arrangements were detrimental to UTHSAC and should be scrutinised more carefully by those members of the Board who did not have a conflict of interest. I do not, however, consider the elaboration made in the draft to evidence a lack of good faith on Ms Walsh’s part in all of the circumstances. Nor do I consider Ms Walsh had any intention to build an evidentiary case to support the claims she has subsequently made in these or other proceedings. She did not, I find, have it within her contemplation at that time that her employment would be terminated and that legal proceedings (including proceedings of this kind) would ensue. The revision of the minutes do not support a conclusion that the subsequent disclosures were not made in good faith.

168    I accept that Ms Walsh may be regarded as a “prime mover” in the limited sense that she did not merely make disclosures to the directors, but positively sought to have the suspicions she had raised investigated thoroughly, including by way of a greater level of Board involvement and scrutiny. There is nothing in Pt 10-5 the CATSI Act to suggest that a person making a disclosure must thereafter remain passive and play no active role in attempts to ascertain whether there has in fact been a contravention of its provisions. To the extent that Ms Walsh actively participated in the steps taken by the relevant directors in response to her disclosures, her conduct in that regard may demonstrate a degree of pre-occupation and obsessiveness, but it does not, in my view, demonstrate a lack of good faith.

The allegations concerning Mr Naumovic

169    This allegation is particularised at [3.3.4.1] of the Second Defence, extracted at [42] above. The allegation is a curious one. It depends on the notion that the personal motivations of Ms Walsh may be inferred from the alleged attitude and behaviours of her husband toward Mrs Larkins.

170    For the reasons given below, I do not accept Mrs Larkins’ account of the conduct alleged against Mr Naumovic. It is therefore unnecessary to consider how the events might have affected my assessment of Ms Walsh’s bona fides in making the disclosures.

171    At relevant times, Mr Naumovic was the treasurer of the miner’s co-operative OMEI. OMEI employed in its stores a person I will refer to as Ms A. Mr Naumovic gave unchallenged evidence to the effect that he had cause in the past to discipline Ms A for misconduct in connection with her employment. This, he said, gave Ms A reason to dislike him.

172    In early 2011, Mrs Larkins received a phone call from an employee of UTHSAC, Jennifer Riessen. Ms Riessen reported that Ms A had told her that Mr Naumovic had verbalised threats of physical violence toward Mrs Larkins and her children. Mrs Larkins gave evidence (which I accept) that she found the reported threats shocking and that she was frightened. She told Mr Larkins about the phone call. She said that Mr Larkins had expressed the view that if they heard anything more about the threats they should report the matter to the police. It should be recalled that Mr Larkins was himself at that time a police officer stationed in Coober Pedy.

173    Mrs Larkins did not raise the issue with Ms Walsh until June 2011. She said she was too frightened to raise it at an earlier time and that she “didn’t want to upset anybody”. A meeting subsequently occurred between Mrs Larkins, Ms Walsh and Mr Naumovic. There is some dispute concerning the timing of the meeting. I find that it occurred between 1 June 2011 and 4 August 2011.

174    Mrs Larkins alleges that when she raised the issue with Mr Naumovic at the meeting he first responded by denying he had made any threats toward her and her family. Mrs Larkins gave evidence to the effect that Mr Naumovic then uttered obscenities about Ms A to the general effect that she was a malicious liar. Mrs Larkins’ evidence continued as follows:

One thing that really stuck in my mind for so many years: he leant forward and he said to me, ‘When you heard about it, was you frightened,’ and those words were so cold. His face, his expression was so cold, and yes, I was scared. I was frightened, but I said to him, ‘When it comes to my kids, my kids are my life,’ and that if anything happened to my kids, that’s then a police matter.

175    Mrs Larkins added that Mr Naumovic had referred to missing backpackers and that he had stated that he knew who was responsible for their disappearance and where they were buried. She said she was horrified and scared by Mr Naumovic’s statements at the meeting and that she felt “very very uncomfortable”.

176    The allegations are denied by Ms Walsh and Mr Naumovic. They each gave evidence to the effect that the meeting between them and Mrs Larkins happened a few months after Mrs Larkins first raised the issue of the reported threats with Ms Walsh. They alleged that Mr Naumovic had at that time been engaged by UTHSAC to facilitate the purchase of some land and that he was present on UTHSAC’s premises for that purpose. They each said the meeting was amicable.

177    On 4 August 2011, Mrs Larkins drafted a letter to the management committee and members of OMEI with the heading “Letter of Complaint”. The letter does not make any reference to the sinister words alleged to have been said by Mr Naumovic in her meeting with him. After some introductory paragraphs recounting the reports of the initial threats rumoured by Ms A, Mrs Larkins states:

In June I approached my Executive Assistant Lexie Walsh who is the wife of OMEI Treasurer George Naumovic. I informed her of the allegations against her husband to which she adamantly denied to be true. Lexie also informed me that [Ms A] had been waging a case of malicious slander and gossip against her husband because he had been finding questionable dealings in her role as [an employee of] OMEI. Lexie also brought George Naumovic into my office so that I could tell him personally of the alleged threats and the impact that it had on me.

I cannot stress enough that this malicious slanderous gossip that has come through [Ms A] of Opal Miners Enterprises could have had serious implications for not only members of my staff but also for your Treasurer George Naumovic.

178    It is clear that the letter was authored after the date on which Mrs Larkins alleges her meeting with Mr Naumovic and Ms Walsh took place. In light of its contents, I do not accept Mrs Larkins’ evidence concerning the conduct alleged against Mr Naumovic in that meeting, both in connection with his leering enquiry about whether Mrs Larkins was frightened and in relation to his alleged menacing statements concerning the fate of missing backpackers. I infer from the correspondence that after her meeting with Ms Walsh and Mr Naumovic, Mrs Larkins joined in the view that Ms A had engaged in malicious gossip, that Mr Naumovic had not made the previously rumoured threats at all and that Ms A ought to be taken to task for suggesting that he had. Mrs Larkins’ conduct in writing and sending the letter cannot be reconciled with the factual account she gave of the meeting or with her alleged feelings in connection with it. She attempted to explain away the effect of the letter by suggesting that Ms Walsh and Mr Naumovic had asked her to write it and that she had felt pressured to do so. No details were given as to how she was pressured and, if so, why she succumbed. Her explanation was vague and unconvincing. I do not accept it.

179    Moreover, as I have said, Mrs Larkins had previously discussed Mr Naumovic’s alleged threatening behaviour with her husband and they had resolved at that earlier time that if anything else transpired in relation to the threats they would notify the police. No notification was made to SAPOL after the meeting with Mr Naumovic, notwithstanding Mr Larkins’ status as a police officer, Mrs Larkins’ stated feelings of fear and horror and the insinuation that Mr Naumovic had information about unsolved murders. Furthermore, I am satisfied that Mr Naumovic did indeed facilitate the purchase of a block of land on UTHSAC’s behalf in 2011, after the conduct alleged against him occurred. It is unlikely that Mrs Larkins, as UTHSAC’s CEO, would countenance the idea of Mr Naumovic working on behalf of the organisation in that way if he had engaged in the conduct now alleged against him.

180    Mr Larkins gave evidence to the effect that Mrs Larkins had made a prior out of court statement consistent, at least in part, with the evidence she had given about the 2011 meeting with Mr Naumovic. His evidence lacked detail and conviction. In my assessment, it does not restore Mrs Larkins’ credit in relation to this critical issue.

181    This remaining ground for asserting a want of good faith on Ms Walsh’s part is not made out.

ACTS ALLEGEDLY AUTHORISED BY MRS LARKINS

182    There are three acts of victimisation allegedly committed by others and for which, it is said, Mrs Larkins is responsible: see [11] above. It is convenient to consider those allegations separately.

183    The first allegation is that on 13 April 2012 Mr Larkins parked his car in the vicinity of Ms Walsh’s home and stared in an intimidating manner at Mr Naumovic who was standing outside of the home at the time. Ms Walsh was not present when this act is said to have occurred.

184    Even assuming the conduct occurred, I am not satisfied that Mrs Larkins was aware of it or involved in it, whether by pre-authorisation or otherwise. This aspect of the claim against Mrs Larkins is not made out for that reason.

185    The next allegation concerns an incident at a supermarket in Coober Pedy on 22 March 2013. It may fairly be described as a tense standoff between Mr Naumovic and Mrs Larkins’ son, Kyle Larkins. It is alleged that Kyle Larkins, in the company of his girlfriend Ms Borrett, happened upon Mr Naumovic and Ms Walsh in the supermarket, that Kyle Larkins and Ms Borrett stood in their path and that Kyle Larkins said “What, do you have a problem, mate?” The respondents allege that it was Mr Naumovic who acted in an intimidating manner toward Kyle Larkins and Ms Borrett by blocking their path, refusing to move and cursing at them.

186    Ms Walsh alleged that Ms Borrett was speaking to Mrs Larkins on her mobile phone at the time of this encounter. She submitted that there has been a coordinated effort between members of Mrs Larkins’ family to victimise her following the termination of her employment, of which the supermarket standoff was but one instance. I do not consider the evidence supports such an inference. It has not been shown that Mrs Larkins, whether through a mobile phone conversation with Ms Borrett or otherwise, caused, authorised or influenced the events as they unfolded in the supermarket aisle. It is not necessary to make precise factual findings as to what occurred. The conduct alleged against Kyle Larkins is not shown to be an act of victimisation directed at Ms Walsh for which Mrs Larkins is legally responsible.

187    The background to the next allegation dates back to the mid-1980’s when Mr Naumovic breached two bench warrants in connection with charges of assault. On 15 October 2012 Mr Naumovic was arrested by Coober Pedy police purportedly in the bona fide enforcement of the warrants to which I have referred. He was transferred in police custody from Coober Pedy to Port Augusta where he was further detained. He was released on bail the following day and the charges to which the warrants related were withdrawn by the Director of Public Prosecutions.

188    Earlier on the day of his arrest, Mr Naumovic had approached Mr Hunter at a service station in Coober Pedy. He had accused Mr Hunter of failing to support Ms Walsh, including by giving false and inconsistent statements about his own involvement in the 2 April meeting. Soon afterward, a member of the Coober Pedy police arrived at Mr Naumovic’s home and asked him to attend the police station for questioning about the “argument” with Mr Hunter. Mr Naumovic did as requested. After some questioning, Mr Naumovic stated that it was not unlawful to have an argument, and that if he was not to be arrested, then he would leave. The police then notified Mr Naumovic that the two historical warrants remained outstanding and arrested him. The arresting officer said words to the effect that the Director of Public Prosecutions “wanted him down here ASAP”. Mr Larkins was not on duty at the time of the arrest, although he did commence work shortly afterwards.

189    The arrest of Mr Naumovic was an event that was highly distressing for Ms Walsh. I am satisfied that she regarded the arrest as an indication that she would not have the protection of the police in her dealings with the Larkins family.

190    It is not surprising that Ms Walsh perceived (and continues to perceive) the arrest of her husband to be connected with the circumstances surrounding the disclosures she had made about Mrs Larkins, the termination of her employment and the events that followed. The sudden arrest does indeed appear, on its face, to be a surprising exercise of powers by the Coober Pedy police in all of the surrounding circumstances. In his evidence in this proceeding, Mr Larkins said that the arrest was explicable and not in fact connected in any way with the conflict between members of his family and Ms Walsh. There is little corroborative evidence going to that issue. It is ultimately unnecessary to decide it.

191    It has not been proven that the decision to have Mr Naumovic arrested was authorised or influenced by Mrs Larkins, nor that she had any knowledge of the arrest prior to the event. In the course of Mrs Larkins’ cross-examination, the Court suggested to Ms Walsh that if it formed a part of her case that Mrs Larkins authorised or was involved in the arrest in any way, then the allegation should be put to Mrs Larkins so that she might be given an opportunity to respond. Ms Walsh declined to put her case to Mrs Larkins squarely in that way. She suggested only that Mrs Larkins knew that the arrest had occurred.

192    The evidence does not establish that the arrest of Mr Naumovic was an act for which Mrs Larkins is liable to compensate Ms Walsh.

ACTS ALLEGED AGAINST MRS LARKINS PERSONALLY

193    The acts of victimisation for which compensation is sought against Mrs Larkins do not include her decision to suspend and then to terminate Ms Walsh’s employment. Compensation in respect of the suspension and termination was claimed exclusively against UTHSAC as first respondent in the proceedings, albeit by reference to Mrs Larkins’ acts or omissions. As the case against UTHSAC has been dismissed on other grounds, it is not necessary to determine whether the termination of Ms Walsh’s employment was a compensable act of victimisation engaged in by UTHSAC, whether through the agency of Mrs Larkins or otherwise.

Mrs Larkins’ state of mind

194    The circumstances in which Ms Walsh’s employment was terminated and the events that followed nonetheless inform my assessment of Mrs Larkins’ own state of mind at the time that the subsequent acts of victimisation are alleged to have occurred. As I have already observed, it is not sufficient that Ms Walsh show that the acts alleged against Mrs Larkins were in fact committed. It must also be shown that the acts were committed because Ms Walsh had made the protected disclosures. Counsel for the respondents submitted, correctly in my view, that an act will occur because of a disclosure if the act is motivated by a sense of reprisal against the person who has made it: see King v SA Psychological Board [1998] SASC 6621. In my view, the necessary causal connection may also be established if the act is motivated by a sense of annoyance, frustration or anxiety that the disclosures have been made. In any case, it will be necessary to examine the subjective motivation of Mrs Larkins. The state of mind of Mrs Larkins may also inform the question of whether an alleged victimising act has occurred at all.

195    The thrust of Mrs Larkins’ case was that she remained independent, impassive and professional in relation to the allegations Ms Walsh had made against her. I accept in principle that if Mrs Larkins did indeed have a neutral and impassive attitude toward Ms Walsh the likelihood of her engaging in the particular conduct alleged against her would be low.

196    In assessing Mrs Larkins’ attitude toward Ms Walsh, I take into account all of the findings I have made in connection with the subject matter of the disclosures and Mrs Larkins’ conduct and attitude in connection with them. I have already observed that Mrs Larkins perceived Ms Walsh to be a troublesome busybody.

197    None of what follows is intended to suggest that Ms Walsh did or did not engage in misconduct justifying her dismissal. I am presently concerned not with the truth of the substantive facts relied upon by Mrs Larkins to justify the dismissal, but rather with the acts and omissions of Mrs Larkins when investigating and making the findings she relied upon.

No independent investigation

198    Mrs Larkins contends that the decision to terminate Ms Walsh’s employment was “independent” because she had sought the advice and assistance of Ms Jacobs and then obtained legal advice to the effect that there was a sufficient factual basis to terminate Ms Walsh’s employment for serious and wilful misconduct. She said that she had caused the allegations made by Ms Walsh to be investigated independently by Ms Jacobs and that she had distanced herself from that aspect of the investigation. Ms Jacobs was called to give evidence in support of these claims. It was submitted that Ms Jacobs was an independent and, hence, reliable witness.

199    At the time of the termination decision, Mrs Larkins was aware of the allegations that had been made by Ms Walsh. She was also aware that Ms Walsh was relying on her disclosures to explain or justify her conduct in arranging and participating in the 2 April meeting. The letter of 16 April 2012 makes it plain that it was Ms Walsh’s claim that her own conduct was to be viewed in the wider context of her acting in accordance with UTHSAC’s Anti-Fraud and Corruption Policy.

200    Mrs Larkins did not inform the Board about the content of the 16 April 2012 letter prior to making her decision to terminate Ms Walsh’s employment. Nor did she refer the matters raised in the letter to ORIC or any other external body. Although she engaged Ms Jacobs to assist, she controlled the degree and timing of that assistance. She did not instruct Ms Jacobs to investigate the subject matter of Ms Walsh’s disclosures at any time before the termination decision was made.

201    In her affidavit evidence, Ms Jacobs stated that she did not know what the 2 April meeting was about at the time and that she “still did not know” what the meeting was about. She said that Ms Walsh’s primary claim was that Mr Hunter had called the 2 April meeting. Ms Jacobs interviewed Mr Hunter and Mr Hunter denied that claim. There is no evidence to suggest that Ms Jacobs seriously challenged Mr Hunter about his position by, for example, querying why he had, at the time, raised no objection to the content of Ms Walsh’s email stating that the 2 April meeting was being called at his request. She did not investigate the surrounding circumstances to resolve the differing versions of events. Nor did Mrs Larkins.

202    I find that Mrs Larkins was aware at the time that she terminated Ms Walsh’s employment that Ms Walsh’s solicitors had dispatched to her by post the audio recording of the 2 April meeting. She proceeded to make the termination decision without first awaiting the arrival of, or listening to, the audio recording or providing it to Ms Jacobs or the solicitor for their consideration. She was, I find, content to rely on the circumstance that Mr Hunter had denied calling the meeting and she did not consider it convenient or desirable to investigate that issue further or to instruct Ms Jacobs to do so.

203    It is said that Ms Jacobs’ investigation into Mrs Larkins’ conduct was undertaken “by conference call with the Board of UTHSAC on 8 May 2012”. Minutes of the meeting suggest it may have occurred on 9 May 2012.

204    The respondents’ pleaded allegation that Ms Jacobs was an “independent consultant” is not made out on the evidence. I consider Ms Jacobs’ role to have been that of a partisan assistant to Mrs Larkins. I am fortified in that view by the circumstance that from at least 3 May 2012 Ms Jacobs agreed to act as UTHSAC’s representative in the unfair dismissal proceedings commenced by Ms Walsh on 23 April 2012. The response filed by UTHSAC in that action states “While under suspension, pending investigation, the Applicant made malicious allegations that were meant to divide the community and discredit the work of the Health Service [including the trustworthiness of the CEO]”. I infer that Ms Jacobs acted on Mrs Larkins instructions to prepare that document. The document is signed by Ms Jacobs on behalf of UTHSAC, prior to the date of her “investigation” into Mrs Larkins’ conduct carried out by the teleconference at the Board meeting on 9 May 2012.

205    Minutes of the 9 May 2012 meeting show that the teleconference commenced at 5.30pm and concluded at 6.10pm. Mrs Larkins was not present for it. Mr Larkins remained present until 5.50pm.

206    The minutes do not indicate that the purpose of the call was to enable Ms Jacobs to investigate the allegations that had been made by Ms Walsh against Mrs Larkins. Rather, the minutes state that the Board was “linked via telephone with [Ms Jacob] to discuss the complaint made by [Ms Ackland]”. The minutes go on to record that Ms Jacobs expressed her own view that Ms Ackland had been treated poorly. She gave advice to the Board to the effect that Ms Ackland was deserving of a written apology. There is then reference to Ms Walsh having made an offer to settle her industrial dispute with UTHSAC for the payment of a specified sum. Ms Jacobs is reported in the minutes to have said “Claire [being a solicitor] was consulted and had advised that there was no substance in her allegations of the misuse of funds against [Mrs Larkins], and that [Ms Walsh] was just trying to get some money”. There is no evidence that the solicitor referred to was provided with any instructions sufficient to enable her to form any view about the veracity of Ms Walsh’s claims against Mrs Larkins.

207    Ms Jacobs said that the members of the Board had informed her that “all actions taken by Priscilla Larkins had been with their knowledge and authority”. On that basis, Ms Jacobs “found” that the allegations made by Ms Walsh were false.

208    Although Mrs Larkins was not present during Ms Jacobs’ teleconference with the Board, I am satisfied that she became aware of the discussions that occurred, at least to the extent that they were minuted. The minutes indicate that Ms Jacobs did little more than to ask the Board to confirm that they had confidence in Mrs Larkins’ performance as CEO and to seek instructions to cause UTHSAC to give a formal written apology to Ms Ackland. Mrs Larkins was, I find, aware that members of the Board could not shed light on some of the critical facts that had been alleged by Ms Walsh. Mrs Larkins could not reasonably have concluded in all of the circumstances that a truly independent investigation had been carried out into her own conduct.

209    Mrs Larkins prepared a report into Ms Walsh’s conduct on 2 April explaining the findings upon which the suspension and termination of Ms Walsh’s employment was founded. The report does not address Ms Walsh’s claim that her conduct on that day was explicable because she was acting on concerns under UTHSAC’s Anti-Fraud and Corruption Policy.

210    A further report was tendered. It is a document signed by Ms Jacobs and Mrs Larkins on 11 May 2012 and 14 May 2012 respectively. It does not deal specifically with the subject matter of each of Ms Walsh’s disclosures. It purports on its face to be a report of an investigation into the conduct of Ms Walsh, rather than an investigation into the conduct of Mrs Larkins. It states that the investigation was conducted by Mrs Larkins “by authority from the Board of UTHSAC, and with assistance via phone and email from Ms Dianne Jacobs”. The report states:

During her suspension, Ms Walsh cast serious dispersions [sic] against the Organisation and its financial status, which were completely unfounded and untrue.

…

During the course of this investigation, counter-allegations were made by Ms Walsh against Ms Larkins, the CEO of UTHSAC. Ms Jacobs undertook the investigation of these allegations through a conference phone call with the Board of UTHSAC held on 8 May 2012.

As a result of these discussions with the members of the Board, the allegations against the CEO were found to be false, ie of acting without permission or authority from the Board in operational matters, and on a point of contracted terms and conditions of employment, with the Board confirming that all actions taken by the CEO have been with their knowledge and authority.

211    Mrs Larkins was, I find, conscious of the circumstance that the particular allegations that had been made against her by Ms Walsh had not been thoroughly and independently investigated at the time that she co-signed that report. Her conduct in co-signing an investigation report that concerns her own conduct is telling of her desire to control and contain the impact of the disclosures.

212    The inferences I otherwise draw in relation to Mrs Larkins’ state of mind arising out of these circumstances are limited to the following. I find that Mrs Larkins lacked the professionalism, maturity and insight to manage the obvious conflict of interest affecting her decision to terminate Ms Walsh’s employment. She subjectively desired to have Ms Walsh’s employment terminated before her own conduct might be independently scrutinised and she did not want any connection between the two issues to be independently investigated. She sought to diminish the impact of the disclosures by lending her own name to reports which were critical of Ms Walsh’s conduct in raising the allegations. She was not impassive in relation to the disclosures and her attitude toward Ms Walsh in relation to them was neither detached nor neutral. I am fortified in these views by a statement published by Mrs Larkins a few months later in UTHSAC’s 2011 — 2012 Annual Report:

We were successful in recruiting a new Business Services Manager, who is assisting in providing high quality administrative support to the staff and organisation. Umoona Health went through one Fairworks claim which we chose to accept this claim as unfair due to occurring costs to the organisation, although the dismissal was deemed Fair and Justifiable.

213    That statement does not fairly represent the true basis upon which Ms Walsh’s unfair dismissal claim was resolved. That claim was allowed after UTHSAC made an application to FWA for an “order” declaring that Ms Walsh had been unfairly dismissed. Solicitors acting on behalf of UTHSAC made submissions to FWA that orders allowing the claim could properly be made by reference to submissions that had been made by Ms Walsh and to undisputed facts. The claim was not merely “accepted” by unnamed persons at UTHSAC (whoever they might be). Rather, FWA found that the claim satisfied the statutory requirements of an unfair dismissal on the facts, albeit without the need for a contested hearing. Mrs Larkins was responsible for instructing UTHSAC’s advisers in relation to the unfair dismissal claim. I find she was conscious of the true basis upon which that matter was resolved and sought to preserve her own professional reputation (at the expense of Ms Walsh) by publishing her comments in the Annual Report.

214    Mrs Larkins was, I find, unable or unwilling to remain impassive and emotionally detached from the fact that the disclosures had been made. She maintained that state of mind at the time of the remaining alleged acts, to which I now turn.

The roadhouse incident

215    Later on the day that Mr Naumovic was arrested Ms Walsh returned to the service station in the company of Ms Austin. The two of them were preparing to drive to Port Augusta to attempt to secure Mr Naumovic’s release. When she was filling her car, Ms Walsh saw Mr Larkins outside the roadhouse. She did not approach him or exchange any words with him.

216    Mrs Larkins and her daughter Laura Larkins, then aged 16, went to the roadhouse at the same time. They had driven there in the company of Janice Bailes, the partner of a Coober Pedy community police constable.

217    What happened next is the subject of contested testimony.

218    It was Ms Walsh’s case that she was near the refrigerator section in the roadhouse when she was approached by Mrs Larkins in the company of Laura Larkins. She said she felt frightened and was “freaking out” when the two of them approached her. She said that Mrs Larkins pushed up against her in a “forceful manner, trying to bait me into having a go back at her”. Ms Walsh said she went to the counter to pay for her drinks. She said that while waiting near the checkout Mrs Larkins stood to one side of her and Laura Larkins stood on the other, and that Mrs Larkins said “Hi. Isn’t it a lovely day … I’m going to get your husband killed in gaol”.

219    Mrs Larkins said that she saw Ms Walsh when she first walked into the roadhouse. She says she continued forward toward the refrigerator and that, as she passed Ms Walsh, Ms Walsh “bumped” into her and said “you fucking cunt”. Mrs Larkins said that her daughter remarked “Mum, she just called you a fucking cunt”, and that she had replied with words to the effect “don’t worry about it”. She claims that she then went to the checkout, paid for a drink and left. Mrs Larkins denies exchanging any words with Ms Walsh at or near the checkout and otherwise denies making any threat to have Mr Naumovic killed in gaol.

220    Laura Larkins swore an affidavit in the proceedings dated 28 June 2016. She said she has been employed by UTHSAC since 2013. She deposed to having a driving lesson that afternoon and that she and her mother had “decided to go to the Caltex service station to buy some milk”. The account of events at the roadhouse then given in the affidavit is substantially consistent with that given by Mrs Larkins in her evidence.

221    Laura Larkins presented as a rehearsed witness. When tested in cross-examination on her recollection of the detail of the events, she stated that she thought that the roadhouse was an Ampol. When asked what drink she had purchased, she could not immediately recall. Although these factual details are relatively minor, to my mind they undermine her credit significantly. The details upon which Laura Larkins faltered are set forth in her affidavit sworn in close proximity to the commencement of the trial. There was no suggestion in the affidavit that she had any difficulty recalling minor details at the time of swearing it. In giving oral evidence, she gave the appearance of attempting to recall the facts deposed in her affidavit, rather than drawing from her own recollection of events. I do not accept her evidence.

222    I have already made findings rejecting Mrs Larkins’ evidence about her meeting with Mr Naumovic and Ms Walsh in their 2011 meeting. The evidence Mrs Larkins gave on that topic cannot be explained by a faulty memory or from a misunderstanding of words or gestures. Nor was the topic insignificant – it formed a critical part of Mrs Larkins’ allegation that Ms Walsh did not act in good faith in making her disclosures. Mrs Larkins’ evidence in relation to that critical topic reflects poorly on her credit in these proceedings.

223    Although Mrs Larkins admitted to knowing about the arrest, she denied knowing the reasons for it at the time. I consider it improbable that Mrs Larkins would have received the news of the arrest in a disinterested fashion without enquiring or otherwise being told about the reasons behind it.

224    Mrs Larkins saw Ms Walsh near the refrigerator when she first entered the roadhouse. Mrs Larkins knew at that time that Mr Naumovic had been arrested. In light of the history of relations between the two women, I find that Mrs Larkins appreciated that the arrest of Mr Naumovic would have been upsetting to Ms Walsh, whatever the reason for it. Notwithstanding that, Mrs Larkins did not seek to avoid contact with Ms Walsh. Instead, she approached the refrigerator while Ms Walsh was still there.

225    As to Ms Walsh, I find that she attended at the roadhouse in a state of mixed and heightened feelings. She was fearful for the welfare of Mr Naumovic and angry at the Coober Pedy Police who she believed (not unreasonably) to lack independence. Notwithstanding her anger, I do not accept that Ms Walsh instigated an exchange with Mrs Larkins in the manner alleged by the respondents. In so concluding, I take into account the circumstance that Ms Walsh saw Mr Larkins outside the roadhouse before Mrs Larkins and Laura Larkins arrived. It is not disputed that Ms Walsh did not say anything to Mr Larkins. She did not approach him, notwithstanding his obvious connection with the Coober Pedy Police. In light of the events that had occurred that day, I consider that if Ms Walsh was minded to verbally lash out at somebody about her husband’s arrest, Mr Larkins would have been her first target.

226    Of the feelings Ms Walsh experienced prior to her encounter with Mrs Larkins, I am satisfied that her feelings of fear and intimidation were paramount. Those feelings were informed by her belief (reasonably held at that time) that she would not receive protection from the Coober Pedy Police in her dealings with the Larkins’ family.

227    Ms Walsh presented as a credible witness when recounting these critical events. I prefer her evidence in respect of this allegation. Having regard to all of the surrounding circumstances, I find that Mrs Larkins instigated the encounter, physically contacted Ms Walsh and said the sarcastic and threatening words attributed to her.

228    I infer from all of the circumstances that Mrs Larkins was motivated by a sense of resentment and reprisal toward Ms Walsh and that the disclosures that had been made by Ms Walsh were an operative reason for Mrs Larkins’ conduct at the roadhouse. Although the proven protected disclosures formed a part of a wider conflict, they could not, in my view, be extricated from it, whether objectively or subjectively in the mind of Mrs Larkins.

229    I have not overlooked my earlier finding that Ms Walsh’s disclosures concerning Ms Ackland’s remote working arrangements was not a protected disclosure within the meaning of s 466-1 of the CATSI Act. I do not consider that circumstance to affect my finding that Ms Walsh was victimised because of those disclosures that were protected in the relevant sense. I find that Mrs Larkins was motivated to punish and deter Ms Walsh in respect of all aspects of the disclosed information. It matters not that one category of information does not, on an objective assessment, attract the statutory protection.

230    I find Mrs Larkins contravened s 469-5 of the CATSI Act by her conduct at the roadhouse and is liable to compensate Ms Walsh for any loss occasioned by that act.

231    The two remaining allegations of victimisation may be briefly dealt with.

Intimidating driving

232    It is alleged that on 4 September 2012, Mrs Larkins “tailgated” Ms Walsh, overtook her car and “slammed on” her brakes in an intimidating manner.

233    Ms Walsh tendered video footage which, she said, depicted incidents that were fairly indicative of Mrs Larkins’ driving behaviour. Two incidents are depicted. They do not include the pleaded incident of 4 September 2012. Ms Walsh submitted that I should nonetheless infer from the video footage that Mrs Larkins used her vehicle to harass Ms Walsh in the manner and on the date pleaded.

234    Viewed objectively, the footage indicates that Mrs Larkins, on one occasion, was driving closer to Ms Walsh’s vehicle than was reasonably necessary. Both vehicles were travelling slowly. There is no traffic behind Mrs Larkins’ car. It is unclear whether Mrs Larkins is conscious of being filmed. After a minute or so, Mrs Larkins’ vehicle is seen pulling off the main road to a side street. On the other occasion, Mrs Larkins’ vehicle is shown approaching Ms Walsh’s vehicle from behind and then accelerating quickly while overtaking.

235    Mrs Larkins admitted to driving closely behind Ms Walsh’s vehicle on one occasion. She said that on that day, Ms Walsh and Mr Naumovic were in the car and that they were travelling slowly. She said she could observe Ms Walsh filming her and that she remained closely behind the slowly moving vehicle until she was able to turn from the road to another street. She otherwise denied driving in the intimidating manner alleged against her.

236    Notwithstanding the adverse findings I have made about Mrs Larkins’ credit as a witness in the proceedings generally, I do not consider this aspect of Ms Walsh’s claim to have been proven to the requisite standard by the evidence adduced on Ms Walsh’s case. I do not consider the manner of driving in the video footage to amount, objectively speaking, to intimidating driving and I otherwise am not satisfied that Ms Walsh’s subjective perceptions of the alleged driving incident on 4 September 2012 would truly reflect the objective circumstances. Unlike the other acts of alleged victimisation, this particular alleged act is one in respect of which subjective perceptions of the same event may reasonably differ.

237    Although the event is narrated in Ms Walsh’s diary, I am not satisfied that the diary entry gives an objective assessment of what in fact occurred. The issue is one of reliability, not one going to the veracity of Ms Walsh in any event.

Insulting gesture

238    This aspect of Ms Walsh’s case is connected with the events that occurred at the IGA Supermarket on 22 March 2013. It is alleged that after their tense interaction with Kyle Larkins and Ms Borrett at the IGA, Ms Walsh and her husband went to the Coober Pedy Police Station to report the incident. She said that the police there showed little interest in preparing a report and instead provided them with a form for the purpose of making a police disciplinary complaint, presumably against Mr Larkins.

239    Ms Walsh said that when she was driving home with Mr Naumovic, Mrs Larkins drove toward them in her vehicle and raised two middle fingers at them in an insulting gesture.

240    I am satisfied that Ms Borrett gave Mrs Larkins a version of the events at the supermarket that was (rightly or wrongly) supportive of Kyle Larkins and critical of Mr Naumovic. That occurred either during or shortly after the encounter. Mrs Larkins believed that version of events. She was, I am satisfied, angry and upset by the incident as she understood it and resented Mr Naumovic for acting aggressively toward her son. Even assuming that Mrs Larkins made a gesture of the kind described, it has not been proven to the requisite standard that any such gesture could be sufficiently connected with the disclosures that had been made by Ms Walsh. I would find such a gesture, if made, to be a sign more likely directed at Mr Naumovic in relation to the conduct Mrs Larkins attributed to him earlier that day.

COMPENSATION

241    Particulars of loss and damage are pleaded at [20] of the SOC in the following terms:

By reason of the said contraventions of the CATSI Act by UTHSAC and Mrs Larkins, the Applicant has suffered loss and damage.

Particulars of Loss & Damage

a.    The Applicant is and remains unfit for work for reasons of stress occasioned by the contraventions.

b.    The Applicant suffers from an adjustment disorder with depressed and anxious mood and an adjustment disorder with mild anxiety and depression occasioned by the contraventions.

c.    The Applicant suffers regularly from.

i.    Panic attacks

ii.    Anxiety and stress

iii.    Depression

iv.    Difficulty sleeping

v.    Poor appetite combined with acid reflux

vi.    Neck and shoulder pain from being tense

vii.    Emotional upheaval

viii.    Hyper-alert and fearful state

d.    Distress occasioned by dismissal and Subsequent Victimisation.

e.    Medical expenses.

f.    Loss of pay and benefits.

242    In respect of the quantum of compensation, neither the SOC, nor the submissions, nor the evidence relied upon by Ms Walsh specifically address the factual basis for the single contravention of the CATSI Act proven against Mrs Larkins. Ms Walsh conducted her trial (including as to remedies) on the assumption that she would be wholly successful in her claims that both UTHSAC and Mrs Larkins had victimised her in each respect pleaded. The particular acts of victimisation alleged against Mrs Larkins were not dealt with separately for the purpose of the assessment of compensation.

243    Ms Walsh called two medical practitioners in support of her claim that she had suffered a recognisable psychological injury resulting from the termination of her employment. Assuming that Ms Walsh has indeed suffered the psychological injuries pleaded in the SOC, the medical evidence does not establish a causal connection between the relevant conditions or their symptoms and the particular act of victimisation that has been established on the evidence. Moreover, assuming that the events that occurred at the roadhouse on 15 October 2012 impacted upon Ms Walsh’s capacity to derive an income, the evidence does not establish that the impact persisted beyond the period in which Ms Walsh received compensation under the FW Act or under the workers compensation regime.

244    Each of the expert medical witnesses called by Ms Walsh confirmed that in assessing whether Ms Walsh presently remained unfit for work, it would be material to consider how Ms Walsh conducted herself as a self-represented litigant in these proceedings. They acknowledged that to the extent that Ms Walsh represented herself effectively, that may tell against a finding that she presently remains unfit for work. I agree in principle with that reasoning. Whatever Ms Walsh’s internal psychological state during the course of the trial, she presented for the most part as an earnest, assertive and capable advocate in her own case. In all of the circumstances, even if Ms Walsh was at some time incapacitated from work, I am not satisfied that she remained impacted at the time of the trial, at least in terms of the capacities and skills she demonstrated in the presentation of her case.

245    The claim for compensation founded in personal injury and related economic loss is not made out.

246    I am, however, satisfied that as a result of Mrs Larkins’ contravention, Ms Walsh suffered considerable emotional upheaval. She experienced stress, intimidation, isolation and insult. The distress suffered by Ms Walsh is, I am satisfied, compensable under s 469-10 of the CATSI Act, whether or not it consists of or compounds a personal injury. Construing s 469-10 so as to include loss of that kind in my view advances the obvious objects of the CATSI Act as a whole.

247    In assessing damages, it is to be borne in mind that the award to be made is purely compensatory. Considerations of deterrence or punishment are irrelevant. Moreover, it is necessary to make the assessment in circumstances where there were a number of additional factors bearing on Ms Walsh’s emotional state at the time. The award of damages against Mrs Larkins is to represent the degree to which the particular contravening conduct impacted upon Ms Walsh in all of the circumstances.

248    Taking all of that into account, damages should be assessed at $5,000.00 plus pre-judgment interest in the amount of $1,583.22: see s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) and GPN-INT Interest on Judgments Practice Note.

249    The act proven against Mrs Larkins was not pleaded to be an act for which UTHSAC might be liable to compensate Ms Walsh, whether in accordance with principles of vicarious liability or otherwise. The award of compensation is enforceable against, and only against, Mrs Larkins personally.

250    I will hear the parties as to costs.

Associate:

Dated:    28 July 2017