Held, in relation to whether the disclosures were protected:

• The applicant's first disclosure did not contain public interest information as defined in the Whistleblowers Protection Act 1993;
• If it had, the applicant either did not believe that the information he had disclosed was true or did not have a reasonable basis to believe so regardless;
• The applicant's second disclosure contained some information that is public interest information as defined in the Public Interest Disclosure Act 2018, but the applicant did not have the requisite state of mind for it to be an appropriate disclosure;
• Other information in the second disclosure was not public interest information;
• The applicant's third disclosure contained some information that had previously been disclosed and had therefore lost its capacity to be protected;
• The third disclosure contained some public interest information as defined in the Public Interest Disclosure Act 2018, but the disclosure was not made to an appropriate authority; and therefore
• There is no need to consider the second question as to detriment, as none of the disclosures were protected under either Act.

The parties were to advise the Tribunal as to an appropriate form of the orders consequential to these findings.

Equal opportunity - Complaint alleging that a person acted in contravention of the Whistleblowers Protection Act 1993 - Unlawful victimisation on ground of made proper disclosures - Discrimination against workers - Whether disclosure of public interest information - Whether person believes on reasonable grounds the information is true - Whether disclosure made to reasonable and appropriate person

Equal opportunity - Complaint alleging that a person acted in contravention of the Public Interest Disclosure Act 2018 - Unlawful victimisation on ground of made proper disclosures - Discrimination against workers - Whether disclosure of public interest information - Whether person believes on reasonable grounds the information is true - Whether disclosure made to appropriate authority

Independent Commissioner Against Corruption Act 2012 s 5

Public Interest Disclosure Act 2018 ss 4, 5

South Australian Civil and Administrative Tribunal Act 2013 ss 33, 45

Whistleblowers Protection Act 1993 ss 4, 5, 7, 8, 9

Boyle v Director of Public Prosecutions (Cth) (2024) 332 IR 205

Express Cargo Services Pty Ltd v Mysko [2023] SASC 11

King v SA Psychological Board Supreme Court of South Australia, Bleby J, Judgment No S6621, 9 April 1998, Unreported

Machado v Underwood [2016] SASCFC 65

Morgan v WorkCover Corporation (2013) 118 SASR 297

Mr P Dean, counsel, with Mr W Snow, Solicitor, Snow Legal, appeared for the applicant

Ms E Denbigh, counsel, with Ms S Porter, Solicitor, EMA Legal, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The patients in these proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any patient may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Findings in relation to preliminary issues, and consequential directions

Made under the South Australian Civil and Administrative Tribunal Act 2013 ss 45(3), 33(2)(c)

1. In March 2022, the Commissioner for Equal Opportunity referred to the Tribunal a complaint by Dr Samuel Gluck against the Central Adelaide Local Health Network ('CALHN' or 'the respondent'). The complaint alleges that Dr Gluck made various disclosures between January 2016 and August 2020 that attract the protection of the Whistleblowers Protection Act 1993 ('WPA') or the Public Interest Disclosure Act 2018 ('PIDA').[1] Proceedings of this nature are heard by the Tribunal as an exercise of its original jurisdiction.[2]
2. Dr Gluck maintains that he suffered detriment as a result of his disclosures, and in particular he was unsuccessful in obtaining a subsequent contract as a registrar at the Royal Adelaide Hospital ('RAH').[3] He asserts that these detriments arise from acts of victimisation by CALHN, for which he seeks redress.
3. Attempts to conciliate the referred complaint were unsuccessful and the Tribunal conducted interlocutory hearings preparatory for an adjudication. By directions dated 26 July 2024, I determined to bifurcate the proceedings in accordance with s 45(3)(a) of the South Australian Civil and Administrative Tribunal Act 2013 and consider, as a first step, whether the disclosures have been established, their content, and whether any established disclosures had the effect of conferring on Dr Gluck the protection of the WPA or the PIDA. I foreshadowed that if the outcome established protected conduct, a further proceeding would be scheduled to receive and assess evidence as to whether the alleged detriments occurred, and whether they were attributable to the protected conduct, and if so, what redress is appropriate.
4. A hearing on the first part of the proceeding was conducted over several days in November 2024 for the taking of evidence. The applicant was represented by Mr Dean of counsel and CALHN was represented by Ms Denbigh of the Crown Solicitor's Office. The parties provided written submissions in advance of the hearing, and detailed closing addresses with the benefit of transcript after the evidence was closed and over several months.
5. This decision addresses the first step in the proceeding. Hereinafter, Dr Gluck is referred to as 'the applicant' in this decision.

1. The proceedings invoke the WPA and its successor, the PIDA. The WPA was in force between 20 September 1993 and 30 June 2019. The applicant's first communication that he contends is a protected disclosure was made during this period, on 8 May 2019.
2. The short title of the WPA was "An Act to protect persons disclosing illegal, dangerous or improper conduct; and for other purposes." It sets out to achieve that aim by:[4]
   1. Conferring an immunity from civil and criminal liability on a person (whistleblower) who makes an appropriate disclosure of public interest information;
   2. Requiring a person who has received such information to keep the whistleblower's identity confidential;
   3. Requiring a public official charged with investigating a disclosed matter to keep the whistleblower informed of the outcome; and
   4. By deeming the act of a person who causes detriment to a whistleblower (or a person who intends to become one) to be an act of victimisation for the purposes of the Equal Opportunity Act 1984, and as the tort of victimisation.
3. A key aspect of the scheme is that a disclosure must be of public interest information, with that term being defined in the legislation.
4. The PIDA replaced the WPA. The PIDA commenced operation on 1 July 2019. The second and third communications on which the applicant relies were made on 29 May 2020 and 19 August 2020, respectively. The version of the PIDA applicable to those events was that which was in force when the communications were made. In respect of the second and third communications, that is the version in force between 19 September 2019 and 6 October 2021.
5. The PIDA adopts similar objects and a similar structure to its predecessor and includes some new provisions that are not material to these proceedings. Like the WPA, the PIDA provides that a person who causes detriment to a person who makes a disclosure of public interest information commits an act of victimisation which may be dealt with under the Equal Opportunity Act 1984 or as a tort. Relevantly to these proceedings, the PIDA expands the scope of the definition of "public interest information" such that the two disclosures that the applicant says are protected under the PIDA are considered against a different test than that established under the WPA. The differences will be considered further as they arise in this decision.

1. On the basis of the findings made in this decision, and the legal principles applicable to those findings, the Tribunal concludes that:
   • The applicant's first disclosure did not contain "public interest information" as defined in the WPA.
   • The second disclosure contained some information that is "public interest information" as defined in the PIDA, but the applicant did not have the requisite state of mind with respect to the information for it to be an "appropriate disclosure". Other information in the disclosure was not "public interest information."
   • The third communication contained some propositions that were not disclosures because they had been previously made. It contained some public interest information for the purposes of the PIDA but the disclosure was not made to an appropriate authority within the meaning of that term in the PIDA.

1. The Tribunal was assisted by a Trial Book (TB) into which most of the materials on which the parties intended to rely had been collated.
2. The Tribunal admitted the following documents:
   1. A1 A bundle of two emails not in the trial book.
   2. A2 Affidavit of Dr Samuel Gluck dated 19 August 2024 (but paragraph 100 and Exhibit SG 27 were not admitted by the parties' agreement).[5]
   3. A3 Second Affidavit of Dr Samuel Gluck dated 11 October 2024.
   4. R4 Four-page self-assessment document with the dates 5 August 2015 to 2 August 2016 with "leave days leave taken 4".
   5. R5 SLS form dated 5 April 2019.
   6. R6 SLS form dated 18 April 2019.
   7. A7 Bundle of emails between Dr Gluck and Dr R Strickland dated July 2020.
   8. R8 Affidavit of Lynne Doherty sworn on 27 September 2024.
   9. A9 Email exchanges dated 12 and14 February 2019.
   10. R10 Affidavit of Michael Burton affirmed on 26 September 2024.
   11. R11 Affidavit of Dr Krishnaswamy Sundararajan affirmed on 26 September 2024.[6]
   12. R12 Email chain dated 27 March 2017.
   13. R13 Email chain dated 22 March 2019 (Annexure KS-1 to R11).
   14. A14 SLS incident report.
   15. R15 Affidavit of Dr Andrew Lavender affirmed on 27 September 2024.
   16. R16 Affidavit of Dr Stewart Moodie affirmed on 27 September 2024.
   17. R17 Affidavit of Dr Nicholas Edwards affirmed on 27 September 2024.
   18. R18 Self-assessment document with the dates 5 August 2015 to 2 August 2016 with "days leave taken 26".
   19. R19 Dr Edwards' notes.
   20. R20 Email summary dated 28 March 2016 of A14 reviewed by Dr Sundararajan prior to the making of his affidavit.
3. I made two provisional rulings on 4 November 2024 to admit certain paragraphs of the applicant's affidavit affirmed on 19 August 2024 (admitted as A2) over the objection of counsel for the respondent. The relevance of those paragraphs and their weight has not been material to this decision.
4. The applicant also filed a "Book of Literature" comprising nearly 4000 pages of reports and articles. This was neither tendered nor referred to in the hearing except to the extent that Dr Gluck referred to individual reports in the book.
5. The Tribunal heard oral evidence from:
   1. The applicant;
   2. Ms Lynne Doherty;
   3. Dr Krish Sundararajan;
   4. Dr Andrew Lavender;
   5. Dr Stewart Moodie;
   6. Dr Nicholas Edwards.

The two parties: Dr Gluck and the Central Adelaide Local Health Network

1. The applicant obtained medical qualifications in the United Kingdom from Cambridge University. He graduated with an intercalated BA (Zoology) in 2004 and an MA in 2007. After completing his medical qualifications (MB, BChir) in 2008, the applicant commenced hospital work. In 2013, he successfully completed membership exams of the Royal College of Anaesthetists (UK).
2. The applicant emigrated from the United Kingdom to Australia in August 2013.
3. He was first employed at CALHN's Royal Adelaide Hospital site full-time on a 12 month contract as an ICU medical practitioner, where he fulfilled the duties of junior registrar, and later, senior registrar.[7] He was employed on a full-time basis by SAAS Medstar between February and August 2015.[8] He returned to full-time registrar duties at the RAH from August 2015 for 12 months, and then worked at Flinders Medical Centre (part of the Southern Area Local Health Network, separate from the respondent) as a registrar on 0.5 full-time equivalent basis. He returned to a registrar role at the RAH in February 2017 for 5.7 hours per week (0.15 of a full-time equivalent).[9]
4. Whilst working as a registrar in the ICU at the RAH, the applicant was simultaneously undertaking a PhD funded by the respondent, which he commenced in December 2016. He also performed duties on a casual basis with South Australian Ambulant Services MedSTAR for approximately one shift per month.[10]
5. The applicant was not re-appointed to a registrar role in a recruitment process conducted by the respondent in August 2020.[11] He commenced work with the respondent in a different role, reporting to the Executive Director of Medical Services at 0.2 FTE in August 2020,[12] and continues in that role.
6. The respondent is one of ten local health networks that delivers public health services in South Australia.[13] The respondent is the largest of these and operates five sites including the Royal Adelaide Hospital. It serves the whole of the South Australian population with emergency, inpatient and outpatient services.[14] It has an intensive care unit (ICU) which has approximately 48 beds and receives over 3000 admissions a year.[15]
7. CALHN is governed by a Board which reports to the Minister for Health. The CALHN employed at the time of the events of these proceedings, over 17,000 staff including executives, medical professionals, allied health professionals, nurses and others.[16]
8. The respondent operated the following systems for employees to record or report various adverse events arising in the hospital workplace:
   • The Safety Learning System ('SLS'), which is used by the respondent to record and investigate patient and worker incidents, and consumer feedback. The SLS is an electronic system governed by its Patient Incident Management and Open Disclosure Policy Directive as in force between September 2017 and May 2020 and a Safety Learning System Incidents User Guide, which were tendered by the respondent.[17] The policy provides for an employee to report incidents and describe them by reference to a scale of the seriousness of the risk that the event or incident presents. The reporter is invited to grade an event or incident depending on its seriousness. At the time, the Safety Assessment Code Matrix was in place,[18] with events being graded as SAC 1 (most serious) to SAC 4 (least serious).[19] The SLS policy states that an employee who becomes aware of an incident must report it in the SLS as soon as practicable, within 24 hours.
   • The whistleblower hotline which enables employees to contact an external organisation, Stopline, to report suspected illegal conduct, unsafe behaviour, harassment and bullying in the workplace.[20] Stopline is accessible to staff 24 hours a day via telephone, website, email or mail. An employee may make a report anonymously if they wish. If information is given without anonymity, the information can be provided to a CALHN Disclosure Officer for investigation. Use of the Stopline phone number was publicised to staff by a fact sheet issued by the respondent.[21]
   • The respondent had a SA Health Whistleblowers Protection Policy for public interest disclosures, that was in force between 11 November 2015 and 25 September 2019.[22] The policy was superseded by the SA Health Public Interest Disclosure Policy, and version 1 of this policy was in force from 26 September 2019 and October 2023.[23]

The witnesses and key players in the proceedings

1. The applicant's case concerns various interactions he had with staff working at the respondent's RAH site. The key personnel and their positions at the relevant time are:
   1. Dr Krishnaswamy (Krish) Sundararajan, RAH ICU Consultant, Deputy Director of RAH ICU, Head of Safety and Quality for RAH ICU, and at the relevant time, Acting Director of RAH ICU.
   2. Dr Mark Finnis, RAH ICU Consultant.
   3. Dr Patrick Feeney, Emergency Department Consultant, RAH.
   4. Dr Nicholas Edwards, Senior Intensive Care Specialist, RAH.
   5. Dr Stewart Moodie, medical practitioner employed by the Department of Health and Wellbeing as an Intensive Care Specialist assigned to work at CALHN in the RAH ICU.
   6. Dr Don Mackie, CALHN Executive Director of Medical Services.
   7. Dr Andrew Lavender, Medical Lead for Critical Care and Perioperative Services at the RAH.
   8. Dr Grant Phelps, CALHN Executive Director Safety and Quality.
   9. Ms Natalie Johnson, Quality Support Coordinator - Critical Care Services, CALHN Quality Support Team, CALHN Safety and Quality Nurse.
   10. Ms Helen Kemp, Executive Lead for Human Resources.

1. The applicant asserts that he made three disclosures that attracted the protection of either the WPA (earliest disclosure) or the PIDA (subsequent two disclosures).[24] It is these three disclosures that the Tribunal is required to consider. However, they occurred against a background of reports and interactions that require some detailing to provide context.

The first disclosure and the Whistleblowers Protection Act 1993

1. The first disclosure falls to be considered against the WPA which was in force in May 2019, when the disclosure occurred.
2. At that time, s 9(1) of the WPA provided:

A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.

3. This decision concerns whether the applicant made an appropriate disclosure of public interest information.
4. The definition of "public interest information" in the WPA is as follows:[25]

public interest information means information that tends to show -

(a) that an adult person (whether or not a public officer), body corporate or government agency is or has been involved (either before or after the commencement of this Act) -

(i) in an illegal activity; or

(ii) in an irregular and unauthorised use of public money; or

(iii) in substantial mismanagement of public resources; or

(iv) in conduct that causes a substantial risk to public health or safety, or to the environment; or

(b) that a public officer is guilty of maladministration in or in relation to the performance (either before or after the commencement of this Act) of official functions;

1. The term "maladministration" is defined to "include[s] impropriety or negligence".
2. A disclosure of public interest information will be an appropriate disclosure in accordance with s 5 of the WPA as follows (with provisions inapplicable to these proceedings omitted):

5 - Immunity for appropriate disclosures of public interest information > > (1) ... > > (2) A person makes an appropriate disclosure of public interest information for the purposes of this Act if, and only if - > > (a) the person -

(i) believes on reasonable grounds that the information is true; or

(ii) is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated; and

(b) the disclosure is made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure.

(3) A disclosure is taken to have been made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure if it is made to an appropriate authority (but this is not intended to suggest that an appropriate authority is the only person to whom a disclosure of public interest information may be reasonably and appropriately made).

(4) For the purposes of subsection (3), a disclosure of public interest information is made to an appropriate authority if it is made to a Minister of the Crown or -

(a) where the information relates to an illegal activity - to a member of the police force;

(b) ...

(c) where the information relates to the irregular or unauthorised use of public money - to the Auditor-General;

(d) where the information relates to a public sector employee - to the Commissioner for Public Sector Employment;

(e) ...

(f) ...

(g) where the information relates to a public officer (other than a member of the police force or a member of the judiciary) - to the Ombudsman;

(h) where the information relates to a matter falling within the sphere of responsibility of an instrumentality, agency, department or administrative unit of government - to a responsible officer of that instrumentality, agency, department or administrative unit;

(i) ...

(j) where the information relates to a person or a matter of a prescribed class - to an authority declared by the regulations to be an appropriate authority in relation to such information.

(5) If a disclosure of information relating to fraud or corruption is made, the person to whom the disclosure is made must pass the information on as soon as practicable to -

(a) in the case of information implicating a member of the police force in fraud or corruption - the Office for Public Integrity;

(b) in any other case - the Anti-Corruption Branch of the police force.

What the authorities say about these provisions under the WPA

1. There have been few opportunities for judicial consideration of the provisions of the WPA that are relevant to these proceedings. In the two primary authorities, Morgan v WorkCover Corporation,[26] and Machado v Underwood,[27] the proceedings at first instance concerned whether the identity of a person who had made an appropriate disclosure of public interest information had been divulged contrary to s 7 of the WPA. In the present proceedings, the issue concerns whether the respondent has caused detriment to the applicant in connection with an appropriate disclosure of public interest information contrary to s 9 of the WPA. Although the underlying actions were different, the concept of an "appropriate disclosure of public interest information" in both sections draws upon the same definitions, and the analysis of the meaning and effect of that phrase in these authorities is applicable and binding on the Tribunal.
2. In the earlier of the two matters, Morgan v WorkCover Corporation,[28] the Full Court of the Supreme Court of South Australia was required to consider a letter written by the appellant to the Chief Executive of WorkCover about certain information that had come to the appellant's attention. The appellant alleged that WorkCover then breached confidentiality by revealing the appellant's identity in circumstances other than for the proper investigation of the truth of the matters conveyed by the letter. Accordingly, the action in the original proceedings was one of breach of confidence or breach of statutory duty, rather than a claim of victimisation. The appellant was unsuccessful at first instance and appealed.
3. The Full Court found that the primary judge erred in treating the appellant's motivation for writing the letter as relevant to the question of whether it was an appropriate disclosure of public interest information. In finding that the primary judge had erred in applying the correct legal test, Blue J (with whom Kourakis CJ and Sulan J concurred) said:[29]

... Belief and motivation are quite different things. Section 5(2)(a) is directed solely to the existence of a relevant belief on the part of the person making disclosure: the motive for making disclosure is different to the existence of such belief. A person might believe on reasonable grounds that information is true under subpara (i) and yet be motivated by an intention to cause harm to the person about whom the disclosure is made. A person might believe on reasonable grounds that information is of sufficient significance to justify disclosure so as to permit investigation under subpara (ii) and yet be motivated by a desire to cause harm to the person about whom the information is disclosed.

1. Blue J described the steps to be taken in determining whether there had been an appropriate disclosure of public interest information for the purposes of s 5(2) of the WPA as follows:[30]

2. what matters capable of comprising public interest information were conveyed by the [communication]?

2. did each such item fall within the definition of public interest information? > > 3. was the disclosure appropriate?

3. In relation to the first step, the Court found that some of the content of the letter was innuendo, and as such incapable of comprising public interest information.[31] Without assessing their merits, the Court found that other propositions in the appellant's letter were capable of conveying public interest information.[32] It was only then that the Court proceeded to consider whether the propositions amounted to public interest information and whether the disclosure was an appropriate one.
4. Machado v Underwood concerned an action in defamation.[33] A government officer, Mr Underwood, successfully sued Mr Machado for statements made to the Minister for Sustainability, Environment and Conservation to the effect that Mr Underwood had engaged in maladministration in public administration by failing to properly enforce a regulatory regime directed at ensuring the proper care of rescued wildlife. It was part of Mr Machado's case to rely upon the protection from civil liability that an appropriate disclosure of public interest information attracts by s 5(1) of the WPA.
5. The Magistrate at first instance applied the test laid down by Blue J in Morgan v WorkCover,[34] and this was not disturbed on appeal.
6. The Full Court (Kourakis CJ and Nicholson J) in Machado v Underwood found that the Magistrate had not made express findings as to the second step, namely whether Mr Machado's email to the Minister was a disclosure of public interest information.[35] However, this did not undermine the Magistrate's decision because the Magistrate correctly found that the disclosure was not an appropriate disclosure.
7. On the issue of public interest information, the Full Court observed that the Magistrate had proceeded on the basis that Mr Machado's letter conveyed allegations of illegality on the part of Mr Underwood and that these allegations were propositions that were at least capable of amounting to public interest information.[36] The definition of public interest information in the WPA expressly captures information that "tends to show" that a person or agency has been "involved ... in an illegal activity".[37] The Full Court said:[38]

For present purposes, it can be accepted that substantial aspects of the email, insofar as they raised concerns about the Department's koala management policy and the failure to prosecute persons who breached that policy, might be so characterised. However, it is another question whether extraneous defamatory statements not germane to this public interest information should also be characterised as public interest information for the purpose of section 5 of the WPA.

8. The Full Court did not consider it necessary to revisit which of the individual statements in Mr Machado's letter to the Minister was capable of constituting "public interest information" because it held that it was open to the Magistrate to have found that the statements made by Mr Machado were not statements that he believed on reasonable grounds to be true, or that he was not in a position to form a view as to whether they were true or not.[39] In other words, the disclosure was not an appropriate disclosure. On that issue, the Full Court observed that there may be an obligation on the part of the discloser to make some inquiries:[40]

... It will not always be the case that a potential whistleblower will be obliged to conduct an investigation or make inquiries. However, in some cases, inquiries will need to be made before such a person will be found to have reasonable grounds to believe the truth of the information published. In this case, the defamatory statements made by Mr Machado were in pursuit of a frolic of his own, in that they were directly contrary to the material information in his possession provided to him by Mr Underwood and Anne Bigham, as found by the Magistrate. If Mr Machado wished to maintain a position directly contrary to the information with which he had been provided it was, in the circumstances of this case, incumbent on him to make further inquiries before publishing the defamatory statements.

9. Subject to one additional matter, I adopt the test that was applied in _Morgan v Wo_rkCover and Machado v Underwood. It appears that the Courts hearing those matters may not have been referred to the earlier decision of Bleby J in King v SA Psychological Board.[41] In that case, Bleby J found that in order to amount to a "disclosure" for the purposes of s 9 of the WPA, the information conveyed must not have been previously conveyed.[42] That is, it must be new information. I consider that this is a further element to the test that must be met but will only arise where there have been multiple disclosures.
10. Both Morgan v WorkCover and Machado v Underwood concerned allegations of illegality or maladministration.[43] The phrase "conduct that causes a substantial risk to public health or safety" within the definition was not required to be considered in either case.[44]
11. However, that species of "public interest information" in the WPA is relied upon by the applicant in this case and therefore it is necessary to consider its meaning.
12. A "substantial risk" in this context should be understood as one that is not fanciful or remote. This is supported by the purpose of the WPA and the debate as to that purpose in Parliament, in which the Government expressed its view that the protection was not intended to attach to "trivia".[45]
13. The concept of "public health or safety" in this context should be understood to refer to the health or safety of individuals who may be exposed, in the conduct of their day-to-day lives, to a risk of illness, harm or injury of which they were unaware.
14. In relation to the third step of the test, it should be noted that the step comprises two questions: whether the disclosure was made with the requisite state of mind, and whether it was made to an appropriate person or body for that type of disclosure. It is convenient, therefore, to refer to this aspect of the test as the third and fourth steps.

The parties' contentions and the evidence in relation to the first disclosure

1. The applicant's case is that he made an appropriate disclosure of public interest information over two occasions, on 8 May 2019, and 22 May 2019.[46] On the first occasion, the applicant telephoned Stopline, the respondent's hotline for employees, to report wrongdoing he had experienced in the workplace. The second occasion followed on from this event, as the applicant was subsequently interviewed about the matters he raised on the hotline by an employee of the respondent. The applicant submits that the first protected disclosure occurred across both these events.
2. The information that the applicant contended that he disclosed is that:[47]
   1. CALHN imposed restrictions on employees reporting "incidents" into the Safety Learning System (SLS); and
   2. Dr Finnis verbally abused and/or bullied him, in particular in March 2019, and others had mistreated him, for reporting incidents.
3. The applicant's case, more broadly, was that he was adherent to the respondent's policy regarding employees' responsibilities to use the SLS to record 'incidents' in patient care, so that the respondent and its employees could learn and improve from consideration of those events.
4. The applicant tendered the respondent's Clinical Incident Management Policy dated 15 April 2024.[48] However, I accept that the relevant documents that were in force at the relevant time were predecessors to that document that were annexed to Ms Doherty's affidavit as LD 1,[49] which were available to the applicant via an SA Health intranet at the time.
5. The 31-page policy sets out the agency's commitment to effective incident management and open disclosure with patients about incidents. It defines a patient incident as "any event or circumstance which could have (near miss) or did lead to unintended and/or unnecessary psychological or physical harm to a patient, that occurs during an episode of health care ...".[50] The policy goes on to set out, over several pages, what is required for open disclosure, and directs that open disclosure occur prior to reporting into the SLS. Under the heading "Identification and immediate action after a patient incident" is the following:[51]

All SA Health employees or those providing a service on behalf of SA Health including students, who observe or become aware that a patient incident or near miss has taken place are required to:

• ensure that any person affected by the incident is safe and all necessary steps are taken to support and treat the person/s and prevent further injury
• inform a line manager
• preserve evidence, within the constraints of providing safe clinical care in the situation
• report the incident in the SLS, and document information on the medical record.

1. After describing how open disclosure with the patient is to be undertaken, a section entitled "Reporting of patient incidents" then states:[52]

There is a requirement for accurate and factual documentation in the patient's medical records, including care and treatment provided before, during and after an incident. > > All patient incidents must be reported into the patient incident module of the SLA, via the online web form, within 24 hours or as soon as practicable. > > The staff member who becomes aware of, or observes the patient incident, or has the most information about the incident must make the initial report into the patient incident module. This task cannot be allocated to non-clinical staff unless they discover or are involved in the incident ... > > Many hospital acquired complications, side effects of treatment or unexpected poor outcomes from treatment or care are preventable, or avoidable, and have serious impacts on patients and health services. These must be reported, openly disclosed and investigated in accordance with this policy directive.

2. The policy proceeds to set out the process for completing an SLS report and what then happens with a report.
3. The applicant's case was that, as a member of a clinical team, he observed or was involved in several patient incidents that obliged him to log incident reports in the SLS in accordance with the policy. However, his attempts to do so were discouraged, resisted, and thwarted.
4. As an example, the applicant said that, in February 2019, the ICU received a patient transfer from Alice Springs of an Indigenous man who had had a haemorrhagic stroke.[53] The patient was assessed on arrival not to be a suitable candidate for neurosurgery and was transferred to the RAH's stroke team. The stroke team advised that it would have been preferable for the patient not to have been transferred from Alice Springs because, in light of being unsuitable for surgery, the treatment that could be offered at the RAH was not associated with any likely better outcome than if the patient had remained in Alice Springs. The applicant lodged an SLS report, on the basis that the transfer was not appropriate and the hospital incurred significant costs associated with it. He assigned a SAC 2 rating to the incident.[54]
5. The patient died several days later, away from his family. After contacting the risk management division at the RAH to inform them of the patient's death, Ms Doherty, who at the relevant time was the Clinical Risk Manager for Critical Care and Mental Health at CALHN at the RAH (including the ICU), informed the applicant that they did not have a record of the original SLS report.[55] The applicant resubmitted the SLS report and amended the grading to SAC 1, being the most serious of incidents. He described this as being at her direction.[56] While Ms Doherty agreed that she had asked the applicant to submit the incident into the SLS,[57] she denied that she issued him with such a direction to upgrade the rating to a SAC 1.[58]
6. The applicant alleged that Dr Finnis, a consultant, then reprimanded him, using swear words and an elevated voice, for making the SAC 1 SLS report without consultation with any others, and in particular the members of the teams who were responsible for deciding whether to transfer the patient or not.[59]
7. Following this, on or around March 2019, the applicant stated that he learned at a registrar meeting that the registrars had been issued an oral directive, at a meeting attended by ICU consultants and senior registrars, to refrain from lodging SLS reports before raising the incidents with a member of the ICU leadership team, Dr Sundararajan.[60] Dr Sundararajan would then raise them at a morbidity and mortality meeting with a range of staff, at which time there could be a discussion about the incident and what action was appropriate.
8. The applicant's evidence was that he disagreed with the directive and thought it was inconsistent with the policy. He subsequently emailed Dr Sundararajan on at least five occasions reporting what he considered to be incidents, but later learned from Ms Doherty that none had been reported into the SLS.[61]
9. The applicant provided a further example of the way he was treated upon attempting to report an incident. On 7 May 2019, the applicant was involved in the care of a patient who had had inadvertently been subject to extra-vascularisation of vasoactive drugs by a member of the anaesthetics team, which is separate to the ICU team of which the applicant was a member. The applicant's opinion was that effect of the extra-vascularisation was that blood flow in the relevant area had, or could have, been restricted, which did, or could, cause skin tissue to die, requiring a further operation.[62]
10. The applicant informed Dr Sundararajan, by email, that the incident had occurred.[63] Dr Sundararajan responded, copying in Dr Finnis and Ms Natalie Johnson, Safety and Quality Nurse.[64] Ms Johnson responded, asking that an SLS be lodged. Dr Sundararajan spoke to the applicant in the corridor and told him to leave the SLS lodgement to the anaesthetics team.[65]
11. The applicant again contacted Ms Doherty. He says that she informed him that he was "contractually obliged" to report the incident into the SLS.[66]
12. On 8 May 2019, the applicant lodged an SLS in relation to the incident. He sent a text to Dr Finnis to inform him that he was in the process of reporting a SAC 3 incident.[67]
13. The applicant then received an abusive text message from Dr Finnis. The text thread contained the following:[68]

Sam...I confess I was somewhat surprised when Krish [Dr Sundararajan] spoke with me yesterday especially given recent events. > > As you do not give a flying fuck what I think - I really do not give a fuck what you do. If this justifies your actions in your head...good luck to you. But do not suffer the illusion people think you are as good as you clearly believe you are! > > Sincerely...

14. The applicant said that he showed a copy of the text message to Ms Doherty. He says that Ms Doherty showed a copy of the text with Dr Grant Phelps, CALHN Executive Director of Safety and Quality. The applicant says he told Dr Phelps that Dr Finnis' response to his proposed reporting of the incident was a systemic issue, and did not seek to have Dr Finnis punished as he believed Dr Finnis was "a victim of these systemic issues and a misunderstanding of the SLS".[69]
15. The applicant believed that the inappropriate nature of the text was going to be escalated by the respondent's officers. The applicant said that he was nevertheless concerned that CALHN would not be able to protect him from detriment should he continue to raise concerns about patient incidents.[70]
16. The applicant called Stopline on the evening of 8 May 2019.[71] His affidavit evidence was as follows:[72]

I called the hotline and said words to the effect that there have been restrictions to reporting health incidents relating to patients being admitted into intensive care. I have been verbally abused for reporting incidents. I know that incidents that I have reported have not been lodged into the SLS system, as Ms Doherty confirmed this by email on 27 March 2019. This culture puts patients at risk as we will not be able to learn from error. It also puts staff at risk. > > The restrictions to reporting on the SLS raises a potential issue of a substantial risk to the health of safety of the public (or at least a significant section of the public) because the system would fail to learn from mistakes, not be able to recognise issues that may be present across different departments and hospitals and, as such, fail to drive continuous improvement to prevent avoidable deaths. > > Additionally, the bullying I was experiencing for raising concerns was not being acted on, and I was concerned that others were also suffering mental health detriment due to this behaviour.

17. The record of the Stopline communication event is one that was made by the respondent's contractor.[73] The incident details were described as follows:[74]

There have [been] restrictions to reporting health incident relating to patients being admitted into intensive care. The bullying takes place in the pressure to remove or alter these reports. This potentially puts patients at risk.

18. The applicant's evidence at the hearing was that he could no longer remember the content of his phone call to Stopline.[75] For that reason, I find that the contractor's record is a more reliable, albeit summary, record of what the applicant said at the time. Although the two accounts differ in the extent of the detail, the message is not dissimilar.
19. After making the call to Stopline on 8 May 2019, the applicant received an email from a Stopline employee the following morning, asking him to send through his complaint via email.[76] The applicant responded later that day, "This took long enough last night! I'm afraid I am just about to go on leave and will not have time to provide this information till I return in 2 months".[77] However, he agreed to discuss it, and on 22 May 2019, the applicant was interviewed by a CALHN senior investigator, Ms Mounfield, about his Stopline report.
20. In his interview with Ms Mounfield, the examples that the applicant gave for his assertion that reporting was being restricted were the directive to the registrar cohort to email Dr Sundararajan in relation to incidents; the way he had been told to leave reporting to others; and the intimidatory and abusive manner that he was dealt with about incidents that he thought required reporting.
21. The applicant also implied that the attitude he had encountered when he proposed reporting incidents was widespread. However, he said that the restrictions imposed and the attitude of the respondent's senior staff had not daunted him. He told her:[78]

Q: Yeah. So do you think there's fear around reporting? > > A: I don't think - I certainly don't have a fear about reporting. > > Q: Which is good! > > A: I don't know if my colleagues have a fear about it. I just think they have a distrust, I suppose.

22. The applicant submitted that his disclosure of the restrictions on reporting incidents into the SLS system was conduct that causes a substantial risk to public health or safety. The risk was said to arise because the SLS is "a critical part of the quality assurance architecture of the public health system" and that in light of the volume of patients and the number of staff, a potential substantial risk to the public or a significant section thereof, is "obvious".[79]
23. It was the applicant's evidence that the first disclosure was "about the psychological safety of everybody and the understanding of safety culture by senior people within the organisation".[80] He considered that the SLS reporting process was being controlled, and he was being bullied.[81] He also said that he was concerned about "retribution".[82] However, the attempt, as he perceived it, to restrict his reporting of patient incidents into the SLS was ineffective, and he went on to make eleven further reports in the SLS system.[83]

1. The respondent accepts that the applicant telephoned Stopline on 8 May 2019 and complained about a colleague's behaviour towards him. However, the respondent contends that the applicant is now precluded, by the terms of his Further and Better Particulars of Complaint, from relying on the subsequent interview to assert that the Stopline report and the interview constituted a single disclosure. The respondent maintains that the two disclosures were made to different people and contained different information.
2. The respondent maintained that the applicant was wrong in his allegations as to the reporting culture in the RAH ICU but that, in any event, the applicant's primary focus in making the report to Stopline was to complain about Dr Finnis' inappropriate language and the intimidatory and insulting nature of his text. The respondent contended that the applicant's characterisation of the report to Stopline as a complaint about CALHN's culture in respect of reporting patient incidents, and its impact on public health or safety, was a characterisation attributed retrospectively by the applicant in the context of his subsequent claim of victimisation. It was the respondent's case that the first disclosure was properly characterised as a complaint by the applicant about being bullied in the workplace by an individual and as such, did not attract the operation of the WPA.
3. The respondent's case was that the Stopline report was not about public health and was best characterised as an "interpersonal grievance in a workplace context between two individuals".[84]
4. The applicant agreed in cross-examination that he knew that the purpose of the respondent's actions following the Stopline report was to investigate Dr Finnis' actions, within the framework of a potential disciplinary process directed at Dr Finnis.[85] However, he said that from his perspective, his complaint about the text message was part of a whistleblowing complaint concerning the respondent's attitude to employees reporting patient incidents. [86]
5. In cross-examination, Ms Denbigh put to the applicant that the timing of the Stopline report, being two months after the applicant came to believe that there had been a directive about reporting into the SLS, was not consistent with the applicant's genuine belief that he was making a report of a matter which created a substantial risk to public health or safety:[87]

MS DENBIGH: > > Dr Gluck, I suggest to you that if this was really a matter of substantial public safety, or a substantial risk to the public's health or safety, you would not have waited until May 2019 to make your disclosure? > > DR GLUCK: > > So I've spoken to the risk management team within the Royal Adelaide Hospital and I've told them of what is happening. I assumed that they were dealing with those matters. However, after receiving yet another abusive - this time a text message rather than a debriefing - the bullying was becoming too much and I felt that it needed to be reported, because it obviously hadn't - the things that I had asked and highlighted as issues hadn't been improved.

6. The respondent submitted that the Tribunal should accept Ms Doherty's account of the SLS framework and the Morbidity and Mortality Framework as described in her affidavit:[88]

SA Health has a policy for the management and reporting of patient incidents. This policy does not apply to the management of incidents that are reported in other modules of the Safety Learning System (SLS), such as consumer feedback, security incidents, work health or safety, or notifications about employee conduct. Annexed and marked LD1 is the Patient incident management and open disclosure Policy Directive that was in place in [sic] from September 2017 until May 2020 and the Safety and Learning System (SLS) Incidents User Guide. These documents were accessible to all SA Health employees. > > ... > > SA Health also has a mortality and morbidity review framework. Annexed and marked LD3 is CALHN's Mortality Review Framework which commenced in August 2019. This framework underpins the M & M meetings at various units within CALHN. Both mortality and morbidity are discussed at the M & M meetings. > > As the Risk Manager for Critical Care and Mental Health, as from October 2018 I attended the RAH ICU M & M meetings. These were held in the level 4 meeting room on Monday afternoons at 2pm. The ICU meetings were attended by consultants, registrars, nurses and the ICU social worker. In total there would have been about 20 people in attendance. They provided excellent learning opportunities. Every person in attendance was given the opportunity to speak. Every ICU death was discussed, as well as morbidity issues of significance. > > The SLS provides a means of reporting and reviewing reportable patient incidents. The focus of the SLS is learning. Annexed and marked LD4 is a copy of the Safety Assessment Code (SAC) Matrix that was in place in 2019 to rate reportable patient and security incidents. In SA Health, incident severity ratings (ISR) are now used instead of SAC. > > Any staff member can lodge an SLS. When making a report, the notifier should not use the name of the staff member who was involved in the incident. Page 11 of the Safety and Learning System (SLS) Incidents User Guide at LD1 advises this, as does the online notification form, which states in red text that the description and the outcome of the incident should not include names. The SLS is not about pointing fingers or apportioning blame. If a staff member has an issue with another person's conduct, then that should be reported to the relevant Nurse Unit Manager or person in charge and not on the patient incident SLS.

7. Dr Sundararajan was, at that time, an ICU consultant with responsibility for safety and quality in the RAH ICU and was its Deputy Director. Dr Sundararajan gave evidence via affidavit,[89] and in person. It was his evidence that he had oversight of any patient incident in the ICU, shared with the nurse unit manager for the group of beds in which the incident occurred, and the quality assurance coordinator.
8. He considered that the culture for reporting incidents in the RAH ICU was "very strong".[90] The affidavit evidence of Dr Moodie,[91] Dr Edwards,[92] and Dr Lavender,[93] corroborated Dr Sundararajan's evidence that the reporting culture in the RAH ICU was strong, and that no one was aware of employees being restricted in making reports into the SLS.
9. Dr Sundararajan's evidence was that there was no directive that each incident had to be vetted by him before it was reported into the SLS. His evidence was that reportable incidents must be reported when they occur. He defined a reportable incident to be an "act of (sic) omission, or commission, which led to actual patient harm as opposed to perceived harm based on speculation".[94] He said he was not aware of any person being stopped from logging incidents in the SLS.[95] His evidence was that the notification process required a SAC rating to be assigned, which an incident manager would then review and amend if required, based on further events in the patient's condition and care.[96] Dr Sundararajan's evidence was that incident reporting in the ICU was a responsibility shared by all of the staff but that there were specific roles assigned to individuals to ensure that incidents were reported and assessed. He said that the SAC rating of incidents could be an iterative process over several days, as the consequences of the incident emerged.
10. Relevant to his view of the applicant's role in reporting incidents, he observed that registrars may not be as well-placed as consultants to make an assessment of the severity of a patient incident because of the interrupted nature of the shift pattern that registrars work. Consultants, on the other hand, in Dr Sundararajan's view, have "longitudinal oversight" of the ICU patients.[97] This explained his view that incidents should be reported by registrars to a consultant with regard to an initial rating, and that the mortality and morbidity meeting at which the nurses, consultants, registrars and safety and quality staff attended, provided a forum for discussing and finalising the rating for the more serious incidents which attracted a SAC 1 or SAC 2.
11. Dr Sundararajan's evidence was that the applicant's limited working hours, being one or two shifts per week, placed the applicant in a particularly disadvantaged position to assess the nature and severity of incidents in patient care, as he was not present to observe the consequences of any incident playing out.[98]
12. The respondent contended that the applicant had not made a public interest disclosure, as his disclosure did not "tend to show" that CALHN had "been involved in conduct that causes a substantial risk to public health or safety" which was the only available basis upon which the disclosure could be said to come within the definition. Ms Denbigh contended that the applicant had failed to establish that employees had been restricted in reporting incidents, that the respondent's conduct gave rise to a substantial risk to public health, or that the applicant had reasonable grounds to think that it did.

First disclosure: What did the first disclosure convey?

1. The Tribunal's task is to assess the disclosures by reference to the test laid down in Morgan v WorkCover,[99] but including consideration of whether the disclosure contains a revelation to the recipient.
2. The Court in Morgan v WorkCover found that the propositions communicated needed to be distilled.[100]
3. I find that the applicant made a report to Stopline on 8 May 2019.
4. I find that the propositions conveyed by the applicant's first disclosure were capable of conveying public interest information. They were not speculation or innuendo, but assertions capable of being found to be true or false. They were information.
5. Notwithstanding that the applicant confined his description of the first communication to the occasion of calling Stopline in his Further and Better Particulars of Complaint, I consider that the two occasions should be treated as a single disclosure of the matters about which the applicant sought to complain. In taking that approach, the Tribunal observes that the record made of the phone call to Stopline was a record made by the respondent's contractor, and did not necessarily capture the applicant's intention or emphasis. Furthermore, the respondent channelled the complaint into its system and sought elaboration by the applicant in a follow-up interview. An appropriate approach requires that the applicant be entitled to rely upon the statements he made to the respondent's investigator who interviewed him about his Stopline disclosure, in order to assist the Tribunal to decide whether there had been a disclosure of public interest information on 8 May 2019 for the purposes of the WPA. In any event, as will become clear, the Tribunal's finding does not turn on whether the disclosure is assessed only by reference to what was said to Stopline or is also assessed by reference to what was said in the subsequent interview.
6. I find that there were two related topics that were the primary focus of the applicant's first disclosure. One was his evident objective to improve the respondent's ability to learn from incidents in relation to patient care and improve in its approach. The other was to stop the resistance he perceived he met when advancing that objective. Regarding the incident in February 2019 involving the patient transferred from Alice Springs, he told the investigator:[101]

... And, I suppose, my objective, at the end of the day - or- not objective. My hope is that this incident leads to improvement in that system and how that's understood and how that works. And, I think that's an organisational issue. I don't think it's isolated just to RAH, and even just to RAH ICU. I think it's across the board. But, if I can improve it in the environment in which I work, then, I think, it's a safe place for the patients I treat...

First disclosure: Did it constitute or contain public interest information?

1. In Morgan v WorkCover, having distilled the propositions from the communication, the Court then approached each item of information and asked, if it were true, would it constitute maladministration?[102] The second step requires consideration of whether the information conveyed is one of the types of information that brings it within the definition of public interest information.
2. The Court observed that this step does not require any assessment of the motive of the discloser, or the likelihood of the allegation being true.[103] Nor is it necessary for the discloser to couch the disclosure using language that aligns with the legislation.
3. I find that the applicant did not express a view, at the time that he made the disclosure, that either the restrictions on CALHN employees reporting "incidents" into the SLS, or the alleged abusive text he received from Dr Finnis, caused a substantial risk to public health or safety. However, it was not necessary for him to do so if the disclosure, viewed objectively, contained information about conduct that tended to cause such a risk. It is convenient to consider the two propositions separately.
4. The applicant's proposition was that the ICU leadership's restriction of the use of the SLS by registrars in the ICU was capable of creating a substantial risk to public health or safety. The difficulty was that the applicant did not establish that there had been a restriction on the use of the SLS, or how the risk arose.
5. The applicant did not establish on the balance of probabilities that there had been a directive which was intended to, or had the effect of, restricting reports to the SLS. I accept Dr Sundararajan's evidence that the directive was not intended to restrict staff's use of the SLS, but to provide a process for the application of the policy that would enable a report to draw on multiple perspectives and diverse information through the mortality and morbidity meeting.
6. I do not find that the behaviour of Dr Finnis or Dr Sundararajan to the applicant in communicating with him about the use of the SLS dissuaded the applicant from using the SLS (in fact, it did not).[104] The applicant did not establish that any other person had been dissuaded from using the SLS. The applicant did not call any witnesses to support his account that there had been attempts - successful or unsuccessful - to dissuade reporting or the use of the SLS.
7. Despite its detail, the respondent's policy lacked a clear statement as to when an incident or near miss was sufficiently grave to warrant a report. This is surprising, given that the policy imposes an obligation on all involved in such an incident to make a report. However, there was at least some consensus amongst the respondent's witnesses that not everything that had the potential for an adverse outcome was required to be reported. Ms Doherty said:[105]

Not everything to do with a patient is a patient incident which requires reporting. An incident can be rejected from the SLS if it becomes evident after the initial consideration that it is an incident that does not require reporting. ... If all incidents to do with patients were reported, the health staff would have no time to provide patient care.

8. The applicant disagreed. He considered that the unambiguous wording of the policy requires that every incident, being every event that could or did lead to intended or unintended physical or psychological harm to a patient during or as a result of an episode of care, must be reported.[106] On the face of the document, that is correct.
9. This difference of opinion as to how the policy should be translated into the reality of the hospital environment is perhaps at the heart of the issue. The applicant considered the policy to be a vital component of establishing a learning environment and sought to give it full operation to maximise its educational function. The respondent's witnesses considered that a realistic approach meant that sometimes the error or impact had not yet been established, or the potential harm was too remote, to require a report at that point in time, or that it would merely clog the reporting system if every person who was involved logged a report in relation to the same incident.
10. The weight of the evidence was to the effect that senior staff wanted incidents to be referred to them, and then discussed at a mortality and morbidity meeting.[107] Dr Lavender's evidence on this issue was pertinent. He stated that the SLS was not the process for managing a rapid response, but rather for internal reflection and learning.[108] He stated that if an incident were significant, it needed to be dealt with straight away.[109] This view was reinforced by Ms Doherty; the focus of the SLS was for learning and not for incident response.[110]
11. At its highest, the applicant's evidence was that certain learning opportunities had been lost as a result of the respondent's consultants taking a narrower view of what needed to be reported into the SLS, or when it should be reported. The applicant referred in his affidavit to reports and materials that he had read, which concerned the connections between in-hospital learning systems and the incidence of clinical errors in the treatment of patients.[111] However, this fell short of establishing that the conduct at the RAH described by the applicant caused a substantial risk to public health or safety.
12. The applicant also contended that the restriction on reporting into the SLS constituted "mismanagement" in that it entailed the institution of a practice that is contrary to policy.[112] However, the term "mismanagement" only arises in the WPA within the phrase "substantial mismanagement of public resources" and is not apt for the allegation made. The allegation was not expressed as one relating to resources.
13. There was no suggestion that the information conveyed to the respondent was information that had previously been conveyed to the recipient.
14. I find that the propositions in the first disclosure did not constitute "public interest information".
15. It is not necessary, therefore, to consider whether the applicant held the requisite belief about the disclosure, or whether it was made to an appropriate authority, being the remaining criteria of the Morgan v WorkCover test.
16. However, it may assist the parties for the Tribunal to make some observations as to the applicant's beliefs and whether they were reasonably held.
17. It is difficult to accept that the applicant believed that every person who observed any event that had the potential to cause a patient any degree of harm was required to submit their own separate report into the SLS, even if that was consistent with a strict reading of the policy. I accept Dr Sundararajan's evidence that the applicant, as an employee undertaking only one to two shifts per week, was particularly poorly placed to make assessments as to the impact of a particular aspect of a patient's care on that patient because he did not have the continuous oversight of the patient over several days. This must have been evident to the applicant. He did not have reasonable grounds upon which to conclude that he was well-placed to make reports or SAC rating assessments without discussion with those closer to the incident than he was. His claim to adherence to contractual obligations in those circumstances belied the danger, inconvenience and impracticality of his persistence in making reports about events with which he was not centrally involved.
18. To the extent that the applicant considered that the respondent was attempting to limit or control the use of the SLS, and that this gave rise to a substantial risk to public health or safety, I find that this was not a reasonably based belief.

1. The second disclosure is governed by the PIDA, which succeeded the WPA.
2. The relevant iteration of the PIDA for the purposes of the second disclosure is that which was in force when the applicant made a complaint to the Office of Public Integrity, namely on 29 May 2020. That was the PIDA in force between 19 September 2019 and 6 October 2021.
3. Like the WPA, the PIDA at that time conferred protection upon a person who makes a disclosure of "public interest information". Under the PIDA, the definition of public interest information includes the specific categories of "environmental and health information" and "public administration information",[113] both of which are further defined.
4. "Environmental and health information" is defined as "information that raises a potential issue of a substantial risk to the environment or to the health or safety of the public generally or a significant section of the public (whether occurring before or after the commencement of the Act)."[114]
5. For the purposes of these proceedings, the relevant component of this definition concerns information that raises "a potential issue of a substantial risk to the health or safety of the public generally or a significant section of the public".
6. Such information is protected if the person making the disclosure "believes on reasonable grounds that the information is true, or the person was not in a position to form a belief on reasonable grounds about the truth of the information, but believes on reasonable grounds that the information may be true, and it is of sufficient significance to justify its disclosure so that its truth may be investigated".[115]
7. "Public administration information" is defined as "information that raises a potential issue of corruption, misconduct or maladministration in public administration (whether occurring before or after the commencement of this Act)."[116] Such information is protected if the person making the disclosure reasonably suspects that the information disclosed raises a potential issue of corruption, misconduct or maladministration in public administration.[117]
8. The term "maladministration in public administration" was defined in the PIDA at the relevant time by adopting the definition given to that term in s 5 of the Independent Commissioner Against Corruption Act 2012:[118]

Conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources or conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and includes conduct resulting from impropriety, incompetence or negligence; and is to be assessed having regard to relevant statutory provisions and administrative instructions and directions.

9. I accept the applicant's submission that no male fides are required to be proven as the term captures conduct arising from "impropriety, incompetence or negligence".[119]

What is the effect of the use of the term "potential"?

1. Both of the definitions employ the word "potential". The applicant was not required to show that the information he had disclosed demonstrated a substantial risk to public health or safety, only that it had the potential to do so. Similarly, he was not required to show that the information amounted to maladministration; only that the disclosed information raised a "potential issue" of maladministration.
2. The use of the word "potential" does not appear to have been judicially considered in the context of this legislation. The Macquarie Dictionary definition of "potential" is "possible as opposed to actual" and "capable of being or becoming".[120] It indicates that something less than knowledge or proof is required for an action to be taken. Neither the person making the disclosure, nor the person deciding whether to act on the disclosure, is required to be satisfied that the information disclosed does in fact establish that there has been maladministration or a substantial risk to public health or safety. Rather, the information must be capable of establishing it. In other words, the fact that there may be an explanation consistent with there having been no maladministration, or no risk to public health or safety, is not a bar to the information coming within "public interest information".
3. Exactly how likely the information disclosed must be to fulfilling its potential is not specified in the legislation. However, alternative formulations connoting a greater level of proof, such as "likely issue" or "probable issue" have not been used. I accept the applicant's submission that the threshold is not a high one. [121]
4. To meet the third criterion set out in Morgan v WorkCover in respect of the applicant's contention that the overtime contention raises a potential issue of maladministration, the applicant had to suspect on reasonable grounds that it potentially raised such an issue.
5. The phrase "suspect on reasonable grounds" arises in several legislative provisions across the statute book. The Corporations Act 2001 contains a regime which confers on a whistleblower protection from civil or criminal liability arising out of a qualifying disclosure of information to a body within a specified class. The Commonwealth scheme bears some resemblances, but also significant differences, to the WPA and the PIDA schemes in this State. However, the Corporations Act 2001 scheme contains a requirement for the discloser to have reasonable grounds to suspect certain matters, and the judicial consideration of that concept is useful to understanding its meaning for the purposes of the WPA and PIDA. In Express Cargo Services Pty Ltd v Mysko,[122] Stein J said:

The Corporations Act provisions contain a requirement for the discloser to have reasonable grounds to suspect certain matters. In Quinlan v ERM Power Ltd (No 1) ("Quinlan"), Bowskill J (as Her Honour then was) said: > > The phrase has been held to comprise both subjective and objective elements: the discloser must, themselves (subjectively) possess grounds to suspect the relevant things; and those grounds must, objectively, be reasonable. > > Justice Bowskill referred to a number of authorities for the propositions that the objective element requires the existence of facts sufficient to induce the state of mind in a reasonable person and there must be some factual basis, known to the person who suspects, for the suspicion. Justice Bowskill concluded that, in the context of s 1317AA(4) and (5), as the discloser must possess reasonable grounds for suspecting the relevant matters, it is thus relevant to consider what the discloser knew at the time of disclosure and consider whether that provided reasonable grounds to suspect contraventions had occurred. > > (Footnotes omitted)

6. I consider it appropriate to adopt the same approach to the phrase as it appears in the PIDA.
7. Further, the general test set out in Morgan v WorkCover remains apposite (with the additional criterion regarding the need to establish a "disclosure"),[123] although the categories of "public interest information" are different in the PIDA. In order to have the benefit of the protection that the PIDA confers, the applicant must show that:
   • They made a disclosure (i.e. conveyed new information to the recipient) and it contained propositions capable of being public interest information
   • It did in fact contain public interest information as defined in the legislation
   • They held the requisite state of mind about the truth of the propositions disclosed; and
   • The disclosure was made to an appropriate authority.

Second disclosure: What did the applicant communicate?

1. The applicant made the second disclosure on 29 May 2020. On that date, he submitted an anonymous complaint to the Office for Public Integrity South Australia (OPI) via OPI's online reporting system.[124]
2. The complaint makes two allegations against the CALHN. The applicant's words were:[125]

The Royal Adelaide Hospital rosters registrars to work during the day and night in the intensive care unit. The unit has expanded and have the staffing requirements. In addition registrar numbers have been reduced. This has meant that the unit struggles to cover leave and sickness. They have recently decided to cut the registrar numbers again. This will result in excessive overtime working by the registrars. Not only does this affect them and their work life balance, but its a waste of money as every overtime hour worked is paid at 1.5 times the hourly rate. IN 6 months last year their was $500,000 paid in overtime payments, we could have easily employed several full time registrars with that money. > > In addition the unit has in place a workplace flexible arrangement that was negotiated by me - it was then misinterpreted by CALHN - I believe at the advice of those mentioned - although I have no evidence to support this. Now the misinterpretation has been discovered shared services will need to go through everyone time sheets for the last few year to re calculate what they are owed. > > I believe this was a measured attempt to try to under pay the registrar group, and at totally odd to the way the negotiation occurred, but also has been deemed a misinterpretation. The cost in staff moral, and costs of having to work through thousands of time-sheets is a total waste.

3. The disclosure contains two distinct assertions. The first contention can be summarised as a misuse of funds by the respondent in its employment practices. The applicant alleged that the respondent reduced the number of registrars employed in the ICU, while simultaneously increasing the number of shifts to which the registrars were assigned. This resulted in the registrar cohort working greater amounts of overtime. Overtime shifts are paid at a rate higher than is paid for standard shifts. The applicant alleged that the additional expenditure on overtime shifts would have been avoided if the number of employed registrars was maintained. This was said to amount to unnecessary expenditure. It is convenient to refer to this as "the overtime contention".
4. The applicant's second allegation in the second disclosure was that the respondent had engaged in a deliberate misapplication of a negotiated flexible work arrangement that the applicant had negotiated on behalf of the registrars. According to the applicant, the misapplication of the policy, which went unnoticed for some time, led to thousands of employee timesheets having to be reviewed, which was a "total waste" and imposed a cost on staff morale.[126] It is convenient to refer to this as "the timesheet contention".
5. There was no suggestion that these were not "new information" to the respondent. They were disclosures in that sense.
6. Both of the contentions are capable of being assessed as to whether they are public interest information. They are contentions about which the truth can be ascertained and about which it is possible to determine whether they meet the definition of "public interest information". They are not innuendo, or any other type of statement that is not amenable to assessment. They satisfy the first criterion of the Morgan v WorkCover test.

The first contention in the second disclosure - unnecessary overtime

1. The applicant's primary position with respect to the overtime contention is that it was a disclosure of "public administration information" for the purposes of the PIDA, in that it raised a potential issue of corruption, misconduct or maladministration in public administration on the part of the respondent. The applicant submitted that it was wasteful of public resources to the extent of approximately $500,000 per year to pay additional overtime to existing registrars rather than employ more registrars.[127] This was said to constitute maladministration in public administration.[128]
2. The applicant submitted that the overtime contention concerned "wasteful expenditure by government."[129] He characterised it as a "practice, policy or procedure of a public authority, that results in a ... substantial mismanagement of public resources."[130]
3. The applicant also contended that the first contention in the second disclosure constituted "health information", namely information that raised a potential issue of a substantial risk to the health or safety of the public generally or a significant section of the public. The applicant maintained that working excessive hours causes fatigue, and this contributes to poor health outcomes.[131] The applicant contended that the implications of fatigue on the health and safety of patients and staff is "notorious".[132] The applicant referenced the Book of Literature he had filed in support of this statement.[133]
4. The applicant gave evidence that his belief about the reduction in registrars and increase in shifts was based on his professional observations of how the rostering of overtime occurred, by reviewing rosters and by making calculations using the information he was privy to.[134]
5. The applicant said that he had calculated the over-expenditure, the amount of about $500,000 per year, in overtime to registrars by reference to the applicable penalty rates.
6. The respondent tendered the affidavit of Dr Lavender,[135] who also gave oral evidence. He held the role, since October 2019, of Medical Lead for Critical Care and Perioperative Services at the RAH. It was his evidence that the RAH ICU's medical team was made up of consultants and trainees in various stages of their training towards becoming a specialist, and other trainees enrolled in the College program, other trainees in training for other specialisations, and junior doctors (being resident medical officers and interns). Dr Lavender's evidence in relation to the complement of registrars in the ICU directly contradicted Dr Gluck's. Dr Lavender stated that there had not been any reduction of registrars, though there was a small reduction in registered medical officers in CALHN as a whole in 2019 and 2020. It was his evidence that there had not been a reduction in the overall number of medical practitioners who were ICU-trained, or who were undertaking specialist training in the RAH ICU.[136]
7. It was the respondent's contention that employing additional registrars would not result in lower costs for the respondent when compared to paying overtime rates for the existing complement of registrars.[137] Dr Lavender's evidence was that the cost of overtime was approximately equivalent to that of employing additional registrars. Dr Lavender stated that the amount of overtime worked by registrars in 2019 and 2020 did not exceed that of previous years.[138] He said that overtime would always be a feature of staffing the registrar cohort because of a five percent sick leave rate.[139]
8. In cross-examination, the applicant agreed that he had reached his conclusions from his own calculations based on the information he had about salaries, and some information from the South Australian Salaried Medical Officers Association.[140] He conceded that he could be wrong in his calculations. In relation to overtime, the applicant resiled from the position in his second disclosure, but maintained that it was his belief at the time:[141]

MS DENBIGH: > > I suggest to you that what Dr Lavender said about the increase in overtime worked by registrars, that there isn't one. That's correct, isn't it? > > DR GLUCK: > > I wouldn't know. > > MS DENBIGH: > > No, you wouldn't, would you? > > [No audible response] > > MS DENBIGH: > > That's a question. > > DR GLUCK: > > Sorry? > > MS DENBIGH: > > You wouldn't know, would you? > > DR GLUCK: > > Well, my calculations were that there was overtime, but I don't know the exact figures. That's correct. But, to the best of my belief was that there was an increase in the number of registrars on the ros- the number of registrars required to staff the Intensive Care Unit while there was a reduction in the number in the registrar group to do that staffing. And so, I'm surprised that there isn't an increase, but I can- I mean, that could presumably be in the last budget, and we'd be able to see that data. But if Dr Lavender is swearing to that, then I'd have to take his word for it. But at the time, I thought that there was an increase in the number of hours worked and the amount of overtime being paid.

9. He did not agree that he and Dr Lavender were at odds as to the numbers of registrars having reduced.[142] The applicant maintained that the difference was explained by the fact that he included registered medical officers in the term "registrars", whereas Dr Lavender had not.[143]
10. The applicant accepted that his second disclosure did not, at the time it was made, include an assertion that the consequence of registrars working overtime was that it had a detrimental physical and psychological effect on them, or that it created a substantial risk to public health or safety. The disclosure was expressed as a complaint about the respondent wasting public money.[144]
11. The respondent contended that even if its decision to pay overtime to existing staff was less efficient than recruiting new registrars (and the respondent denied it had done that, or that it would necessarily be less efficient if it did),[145] it did not amount to maladministration in public administration.[146] The respondent argued that the concept of "maladministration" in the PIDA was not intended to capture the respondent's choices as to how best, within lawful alternatives, to meet the ICU's staffing complement needs.[147]
12. The effect of the applicant's evidence was that his research and knowledge of hospital administration gave him a strong basis for believing that the additional hours worked by registrars was increasing the risk of injury to the registrars and to patients through poorer patient care and increased error rates.[148]
13. The applicant's affidavit stated that fatigue increases the risk of medical error and was a "significant contributor to avoidable patient mortality".[149]
14. The respondent submitted that the overtime contention was not "health information" for the purposes of the PIDA, because the disclosure referred only to the registrars' "work life balance" and that this failed to engage the requirement of raising even the potential for a "substantial risk to public health or safety".[150] The respondent submitted that the applicant had subsequently, for the purpose of this proceeding, represented the concept disclosed as practitioner fatigue, but that in any event the applicant had failed to establish that any fatigue arising from the overtime of the registrar group, if proven, contributed or could potentially give rise to a substantial risk to public health or safety.[151]

The overtime contention of the second disclosure - was it public interest information?

1. In relation to the overtime contention of the second disclosure, I find that if it were true that the respondent had reduced the number of registrars and then spent a greater amount of money on overtime rather than employing more registrars, it was public administration information i.e. "information that raises a potential issue of ... maladministration in public administration". I do not accept the respondent's argument that the way in which an agency applies its budget in respect of its workforce is incapable of being assessed as maladministration as that term is defined in the legislation. The applicant's contention raised only a potential issue of maladministration, because there were potential explanations that were consistent with it being a prudent practice on the part of the respondent or a necessary action at a particular time. However, the applicant need only establish a potential issue of maladministration.
2. I find that the first contention in the second disclosure potentially amounted to maladministration in public administration and therefore was "public interest information".
3. However, I do not consider that it was "health information". Even taking a liberal approach to the words "health or safety of the public generally or a significant section of the public", it is beyond the elasticity of the phrase to embrace an (unspecified) increase to the number of shifts worked by an (unspecified) group of registrars over an (unspecified) period of time. The applicant's general reference to the Book of Literature only established why the applicant believed that there was a link between health-worker fatigue and patient care errors. It did not establish that this particular group of registrars undertaking an unspecified amount of overtime, without any evidence of fatigue in the particular group, even potentially created a substantial risk to public health or safety, or a substantial risk to the health or safety of a significant portion of the public.

Was the overtime contention in the second disclosure made with the required state of belief for a disclosure of maladministration?

1. I accept that the applicant believed that at least a potential issue of maladministration arose. I accept that he arrived at that decision after observing the management of the hospital, particularly in his own area, with respect to employment and remuneration practices and events. However, the question is whether he suspected on reasonable grounds that the information raised a potential issue of maladministration, objectively.
2. I find that the applicant's suspicion, though genuinely held, was not a reasonable one. Although the applicant performed calculations and made observations in his workplace, I find that he was mistaken or wrong in his interpretation of the data. It is possible that this occurred because his own circumstances of such a small fractional appointment, were unusual. This was described by Dr Lavender in his evidence to the Tribunal:[152]

MS DENBIGH: > > And do you have any recollection of how Doctor Gluck's overtime compared to other people's overtime? > > DR LAVENDER: > > Certainly, in the 15 months leading up to February 2020, the, there was a review done into overtime in the intensive care unit. The average overtime payment for over the 15 months per registrar was 7700 dollars. Certainly, the, Doctor Gluck's payment at that time was approximately 50,000 dollars and reflected around 450 hours of rostered overtime, but rostered or potentially un-rostered overtime. > > MS DENBIGH: > > So, just so I understand your evidence, was that an outlier? > > DR LAVENDER: > > That was more than twice the next most common overtime.

3. To the extent that they diverge, I accept Dr Lavender's evidence on the issue of staffing in the ICU in preference to the evidence of Dr Gluck. Dr Lavender had the available data to support his conclusions. His reliability on this topic was not questioned and his evidence was given in a straightforward and considered manner. I accept Dr Lavender's evidence that in 2019 and 2020 there were two vacancies in the junior medical doctor complement in the ICU but not a reduction in registrars.[153]
4. I also accept Dr Lavender's evidence that the amount of overtime undertaken by the registrar cohort remained relatively static over about ten years.[154] I accept Dr Lavender's evidence that there were no significant differences between the costs of overtime and recruitment in the circumstances of this group and the fluctuations it had experienced. He denied a relationship between the two junior medical officer vacancies and overtime by the registrars.[155] His evidence on these issues was not undermined in cross-examination. He said:[156]

... the principle for the way the rostering works is that you build a regular roster and in the critical care areas, which is the operating theatres and intensive care, intensive care particularly because you're rostering to cover shifts over 24 hours, you build your workforce around covering that. So, the, as I said before, the inevitable... for a start, there is always some rostered overtime and that's because the junior doctors are rostered to have a 38-hour working week and their shifts do not match a, so there are different extended, different lengths of shifts, which means you don't ever get an exact 38 hours. So... we won't intentionally roster for under 38 hours because we're paying for time, not work, so we will usually... the usual rostered time would be in the low 40 hours anyway, so that there's inevitably rostered overtime there. Then you're also going to get the other rostered shifts, which will happen at short notice, which will incorporate people where we will request if people are available to cover that shift, and that will usually be in overtime as well. So, that's how we build a staffing roster. We've always had the numbers to actually manage the roster. What you don't ever have is numbers to keep people in reserve as a fly-in spot to backfill people who are sick. So, and in terms of the costs, the, in terms of employing extra people, extra people were not available anyway and the costs of employment, if you're talking about costs, the cost of overtime is roughly the same as the cost of employing people.

5. The question of whether the applicant had a reasonable basis for his beliefs is not determined by whether they are true or not. It is determined by whether it was a reasonable belief to hold in light of the information that was available to him.
6. It was not reasonable for the applicant to use his own circumstances as a basis from which to extrapolate the extent of overtime being worked by others,[157] when his small fractional contract was atypical of the registrars.
7. It was not reasonable for the applicant to suspect maladministration, when there was no basis for him to believe that Dr Lavender would not have told him these things if Dr Lavender had been asked, or that the respondent did not have a reasonable basis for staffing and rostering in the manner that it did.
8. Therefore, the second disclosure was not an appropriate disclosure insofar as it alleged, with respect to the rostering contention, maladministration in public administration, because the applicant did not suspect on reasonable grounds that it was true.

Was the communication made to an appropriate authority?

1. Accordingly it is not necessary to proceed to consider whether the disclosure was made to a relevant authority.[158] However, in relation to the first contention in the second disclosure, the OPI is expressly included as a relevant authority under the sub-section and the respondent did not dispute that if the disclosure was otherwise a public interest disclosure, then it was made to a relevant authority.

The second contention in the second disclosure - timesheets

1. The timesheets contention in the applicant's second disclosure concerned an alleged waste of public resources entailed in reviewing payslips or time sheets after a misinterpretation of the flexible workplace agreement was discovered.
2. The applicant contended that the discovery occurred in April 2019.
3. The applicant's case was that the timesheets contention constituted public interest information because it raised a potential issue of maladministration, being the substantial mismanagement of public funds and human resources. He submitted that the failure by payroll staff to properly apply the flexible workplace agreement he had negotiated occurred on the advice of certain consultants, and that the misinterpretation was deliberate. The consequence was that, when it was discovered, thousands of time sheets had to be reviewed.
4. In relation to the timesheets contention, the applicant's first affidavit did not include any contentions but his oral evidence at the hearing was that certain senior staff of CALHN deliberately advised the payroll staff to interpret the flexible working arrangements in a manner that was contrary to the way that they knew the agreement to have been negotiated.[159] However, he also said that he had no reason to believe that this was done "with malice".[160]
5. The respondent contended that the timesheets contention did not constitute "public interest information" and merely represented the applicant's belief that there had been an error in calculating wages which led to a waste of money insofar as the error had to be rectified.[161]

Second disclosure - was the timesheets contention "public interest information"?

1. The evidence concerning the timesheets contention fell quite short of establishing an actual or potential misuse of public resources. A deliberate misinterpretation of an industrial agreement accompanied by an instruction to payroll to act on the misinterpretation might amount to misconduct on the part of the person who gave such an instruction. But the applicant's evidence was that he had no evidence that it was deliberate,[162] and that he did not consider it to have been done maliciously. In fact, although the applicant was carefully re-examined on a number of topics, the second contention in the second disclosure was not advanced in a way that it would make it possible to conclude that the applicant reasonably suspected maladministration in public administration in relation to the timesheets contention.
2. Regardless of reasonable suspicion, the timesheets contention was not a disclosure of public interest information. It is not necessary to consider whether it was made with the requisite state of mind or to an appropriate authority.

1. The third disclosure was made by the applicant by letter dated 19 August 2020 addressed to Professor Lesley Dwyer, the then CEO of CALHN, and Mr Raymond Spencer, the then Chair of the Board of CALHN.[163]
2. At that time, the relevant iteration of the PIDA was the same that was in force for the second disclosure, namely that in operation between 19 September 2019 and 6 October 2021.
3. The nine-page letter traverses the events of the first disclosure and further matters associated with the applicant's employment and his observations as a registrar in the ICU. It did not repeat the allegations in the second disclosure.
4. Unlike the first and second disclosures, the letter makes it clear that the applicant is making a report "as legally advised in a whistle-blowing capacity".[164] By August 2020, when the letter was written, the applicant was in the process of applying for a further contract and believed that he had been "overlooked".[165] I infer that, by this point in time, the applicant was forming the view (if it had not formed already), that he had been, or was being, victimised for his attempts to raise his concerns with the respondent.
5. The letter stated that its purpose was "so that you may effect a change in the culture in RAH ICU".[166] The applicant suggested an independent investigation into the issues raised by the letter and offered his assistance.[167]
6. The letter sets out a chronological summary of interactions the applicant had with more senior employees at CALHN, with a focus (though not solely) upon the inappropriate, impolite and unreasonable manner in which he was treated in those interactions.

Third disclosure: What propositions can be distilled from the letter?

1. The parties each drew on assertions within the letter and argued why the content did, or did not, come within the definition of public interest information. They identified different propositions emerging from the letter and then drew different conclusions as to whether the propositions constituted public interest information. The applicant considered that it was all public interest information in one way or another, and the respondent considered that none of it was.
2. Subject to certain exclusions discussed below, the applicant submitted that each of the pursued propositions in the letter is public administration information and health information.[168] However, whilst the applicant then identifies individual assertions and connects them to health or maladministration claims, his submissions do not engage with the specific language of the legislation. Rather, the propositions are said to "implicate" public administration information, or said to amount to health or public interest information, without establishing how the definitions of those terms are met.[169]
3. The applicant submitted that the legislation is "beneficial" and that a liberal reading ought to be afforded to it in order to ensure that the objects of the Act are achieved. As the learned author observes in Statutory Interpretation in Australia, few statutes have a single object and it is often necessary to consider beneficial (or remedial) provisions rather than attempting to characterise the whole Act.[170] The benefit conferred by the protection provisions in the Act may attract the principle of liberal construction in order to ensure the aim of the legislation is not stymied. But that does not extend so far as to ignore or strain the meaning of words of a qualifying criterion.[171] It has not been suggested by the applicant that the words within the definition of "public interest information" would fail to have a meaningful effect if they were construed in accordance with their ordinary meanings. I do not find assistance in the application of the principle that remedial or beneficial provisions are to be interpreted liberally.
4. That is not to say that statements within a disclosure cannot be combined to meet the qualifying criteria for public interest information. In Machado v Underwood,[172] the communication in question was not dissimilar in style to the applicant's letter in these proceedings. The Full Court was prepared to assimilate parts of the letter into a description of raising "concerns about the Department's koala management policy and the failure to prosecute persons who breached that policy" as something that may be characterised as public interest information.[173]
5. The respondent accepted that groups of propositions might be assessed collectively to determine whether they amounted to public interest information, but only after each was individually assessed to ensure that it was an appropriate disclosure.[174]
6. Whilst that approach was the one taken in Machado v Underwood,[175] I am not satisfied that it is possible to lay down a definitive sequence of steps applicable to all cases. Where there are numerous propositions conveyed, some evaluative assessment will need to be undertaken to determine whether the propositions should be grouped or treated separately. Each matter will need to be approached by reference to its own circumstances. It may be relevant to this exercise to consider how the assertions interact with one another. For example, an assertion that is innocuous when viewed in isolation may, when coupled with another assertion, disclose something more sinister. Further, it may be that particular conduct would not, if considered alone, amount to public interest information, but its repetition or its widespread occurrence within an agency achieves a threshold of seriousness that brings it within the definition of public interest information.
7. In the end, the Tribunal has determined to extract its own compilation of the contents. They are as follows, with certain items identified as "not pursued" to reflect the applicant's position at the hearing, and other marked "previously disclosed", as further discussed below:
   1. Several patients who presented with cardiogenic shock were not taken by the cardiology team overnight to provide percutaneous intervention on the grounds that the patients were too unstable but by the morning it was too late to intervene. When raised at a Mortality and Morbidity meeting, there was resistance to reporting these events in the SLS as clinical incidents, because the incident occurred within the cardiology team;[176] (previously disclosed)
   2. Dr Peter Sharley criticised the applicant for raising safety issues in an end of term training report in January 2015, leading to the applicant not being asked for feedback or further training reports.[177]
   3. Dr Sundararajan talked over the applicant in a meeting;[178]
   4. Dr Sundararajan failed to adopt the applicant's improvement proposal with regard to central lines practice, resulting in further patient incidents and harm;[179]
   5. The ICU failed to adopt the applicant's recommendation of a checklist to address failures to appropriately prescribe venous thromboembolism prophylaxis;[180]
   6. Dr Edwards stepped the applicant down from senior registrar duties to junior registrar duties on the basis that the applicant needed less stress, but this increased his stress;[181]
   7. Dr Edwards failed to explain to the applicant how he had engaged in poor decision-making which led to him being stepped down;[182]
   8. The cardio-thoracic unit's nursing unit manager inappropriately criticised the applicant during a de-brief;[183]
   9. Dr O'Callaghan told the applicant that, as a junior doctor, the applicant did not have enough experience to criticise another person's debriefing technique;[184]
   10. Dr Feeney abused the applicant;[185]
   11. Dr O'Callaghan told the applicant that it was a misuse of the SLS to use it to report Dr Feeney's conduct to a colleague;[186] (previously disclosed)
   12. The applicant raised his concerns about Dr Feeney's behaviour with his Supervisors of Training, and was ignored, and his own mental health was questioned;[187]
   13. The applicant received inadequate feedback from Dr Edwards for alleged poor clinical judgement, and he had to pursue individual consultants to determine their views, without ever learning what he needed to improve on;[188]
   14. The applicant had to submit a freedom of information request to locate an email about his performance that he was told about by Dr Sundararajan, only to find that the email did not exist;
8. Insofar as the third disclosure traversed topics that the applicant had previously conveyed to other authorities, the question arises as to whether those particular parts of the letter can be said to be "disclosures" at all. As discussed earlier, in King v SA Psychological Board,[223] Bleby J found that the making of a disclosure entailed that the information had not been disclosed previously to the person to whom it was disclosed.[224]
9. In that case, it was plain that the discloser had made a previous report and it was not necessary for the Court to consider the "new" character of the information. However, the purpose and objects of the Act are directed at the provision of information that has not otherwise come to the attention of the person to whom it is disclosed. Bleby J said:[225]

On the appellants own case, the information which he provided to the respondent on 5 April 1995 was a repeat of a complaint he had previously made to the respondent in December 1989. To disclose in this context means "to open up to the knowledge of others; to reveal" (Shorter Oxford English Dictionary). A disclosure is therefore the act of disclosing or opening something up to view or revealing it. A necessary implication is the information disclosed has not previously been revealed to the person to whom it is disclosed. This meaning of "disclosure" is entirely consistent with the stated objects of the Act contained in s 3 which provides:

10. The object of this Act is to facilitate the disclosure, in the public interest, of maladministration and waste in the public sector and of corrupt or illegal conduct generally-

(a) by providing means by which such disclosures may be made and > > (b) by providing appropriate protection for those who make such disclosures. > > The assumption behind the Act is that the information disclosed has not previously been made known to the authority concerned, and the object is to ensure that person who make known such information should have adequate protection when they make it known. As the relevant information had already been made known by the appellant to the respondent in 1989, there was nothing new to disclose, and on the appellant's case as particularised by him, there was no relevant disclosure.

11. It may be extrapolated that a "disclosure" does not concern opinion or analysis of the risks associated with information that the recipient already has, except insofar as that analysis entails providing additional, new information. This is consistent with the purpose of the Act being to confer protection on those who are privy to information that concerns serious wrongdoing or serious risk to the public, who may otherwise not be inclined to provide that information to a person or body that has the means and the function of investigating the information for its truth.
12. In the present proceedings, although the three disclosures were made to different persons or bodies, the first and third disclosures were both made to the respondent: the first through the respondent's hotline, and the third to the respondent's chief executive and the Chair of the governing board. I find that to the extent of any repetition in the third disclosure of matters already disclosed in the first disclosure, the repeated allegations were not disclosures.
13. This leads to the conclusion that items: i, xi, xix, xxi, xxii, xxiii, xxiv and xxv set out in [180] above are not "disclosures" as they had already been communicated to the respondent in the first disclosure.[226]
14. Further, at the hearing, the applicant did not press his claim, in relation to the third disclosure, insofar as it concerned non-payment to him or to others of any monetary allowance or monetary entitlements that attracted the protection of the PIDA.[227] I understand, without it having been necessary for me to receive any further detail, that this was because the parties had reached an agreement about these allegations in a separate proceeding. Accordingly, the Tribunal is not required to consider whether those contentions are public interest information. The affected assertions are: xvi, xxvii, xxxi and xxxiv from the list in [180].

Third disclosure: Were any of its individual propositions "public interest information"?

1. Having identified the individual propositions capable of being disclosed, and still pursued, it is evident that some of them are not intended to convey, when viewed alone, public interest information. The proposition that describes the applicant being stepped down from the role of senior registrar, for example, should be assessed within its context of a description of the manner in which the applicant considers he was poorly treated when he sought feedback for the performance issues that were said to have led to the stepping down.
2. There are other propositions within the remaining propositions in the third disclosure that are more directly connected to an allegation of maladministration in public administration or public health or safety information. However, I find that there is no proposition within the letter that, standing alone, can be said to amount to public interest information. None of the remaining propositions that relates to an instance of health care delivered to patients, for example, meets the threshold of potentially giving rise to a "substantial risk to the public or a significant portion of the public". An isolated event or instance of conduct is not one that potentially gives rise to a risk to the public where the potential is only realised if the conduct is repeated or is more widespread.
3. There is no individual proposition in the letter that amounts to potential issue of corruption, misconduct or maladministration in public administration, even though some breaches of conduct protocols and policies may have been disclosed. None of the individual propositions reaches the requisite threshold of seriousness.
4. However, the nature of the issues raised by the applicant in the third disclosure is that they were not, for the most part, sought to be considered separately. Rather, they were sought to be considered as instances of wrongdoing amounting, when viewed together, to systemic failings by the respondent in its culture in respect of learning, patient care and collegiate relationships.[228] To the extent that the propositions "implicated" maladministration in public administration information, as asserted by the applicant, it was by the cumulative effect of such deficiencies in a large health network.[229]
5. The applicant contended that his numerous attempts to raise issues, and the manner in which CALHN responded, combined to raise serious questions as to the willingness of the "health system" to tolerate criticism or inquiry.[230]
6. The respondent accepted that, in principle, disclosures made together may be aggregated and may then meet the definition of "health information", by establishing a substantial risk or a potential substantial risk to health or safety of the public generally or of a significant section of the public.[231] However, the respondent submitted that, even when aggregated, the disclosures in the applicant's third disclosure did not raise a potential issue of a substantial risk to the health or safety of the public or a significant section thereof, primarily because the majority of the assertions in the letter concerned interpersonal interactions between the applicant and particular consultants, rather than assertions about clinical incidents involving patients.[232]
7. Further, the respondent contended that to the extent that any risks to public health or safety were alleged, the applicant failed to prove that he was correct in any of his assessments of the respondent's defective practices, or that they created a substantial risk, or potential substantial risk, to public health or safety.
8. The respondent denied that the assertions in the letter amounted to claims of maladministration in public administration, because even if true and even if combined, the assertions did not meet the threshold of severity, or were not caught by the definition of "maladministration".
9. Instances of wrongdoing might be accumulated and achieve a threshold of severity by their repetition. However, the assessment task lies in consideration of the concrete examples, and not the narrative that may be offered to explain them. As shown below, when the propositions are grouped, it is possible to assess them to determine whether the threshold is met such that one or more of the combined sets of propositions amounts to public interest information. Terms such as "systemic failings" and "lack of safety culture" are conclusory judgements. The way in which the term "public interest information" is used in the PIDA (and the WPA before it) only makes sense insofar as it is understood to refer to events and conduct and not to judgements and assessments about them.

Third disclosure: Did any of the assertions in the third disclosure constitute public interest information by virtue of being combined?

1. The distinct groups of propositions that can be identified in the third disclosure are:
   1. allegations of uncivil conduct;[233]
   2. examples which tend to suggest that the SLS was being undermined;[234]
   3. resistance to learning and improvement;[235]
   4. disregard for safe working hours; [236]
   5. wasting public money in rostering processes and rectifying avoidable errors in pay calculations;[237]
   6. putting staff and patients at risk in relation to COVID-safe practices;[238] and
   7. engaging in non-transparent, unfair recruitment and feedback processes.[239]

1. The allegations of uncivil conduct, including Dr Feeney's behaviour and that of Dr Sundararajan, are amenable to separate and combined assessment. The applicant contended that being shouted at by Dr Sundararajan, disclosed public interest information in public administration in that it was misconduct.[240] The same applies to the allegation that Dr Feeney abused him.[241] Misconduct in public office was at the relevant time defined in the PIDA by adopting the definition of the same phrase from the Independent Commissioner Against Corruption Act 2012:

Misconduct in public administration means - (a) contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or (b) other misconduct of a public officer while acting in his or her capacity as a public officer.

2. The Tribunal accepts that a person shouting at a colleague who is junior in the hierarchy is a contravention of the code of conduct that applied, if established, to the incidents with both Dr Sundararajan and Dr Feeney. I accept that the allegations if found to have prima facie truth, may have constituted grounds for disciplinary action for a breach of a code of conduct. Under the reporting scheme as it was in place at the time, such conduct came within the definition of "misconduct in public administration".
3. These allegations constituted public interest information individually and together.
4. Such information, to be protected in its disclosure, needed to be reasonably suspected by the disclosing party to give rise to potential misconduct. The applicant did not assert in his evidence that he reported the incivility because it amounted to misconduct. However, it may be inferred from his description of it as bullying that he suspected that the conduct was potentially misconduct. The allegation regarding Dr Finnis' text is excluded from consideration because it was previously disclosed in the first disclosure.
5. I find that this aspect of the third disclosure amounted to public interest information.

1. The claims in the third disclosure regarding the undermining of the use of the SLS were claims that had previously been made in the first disclosure. They were therefore not "disclosures". Although the terms of the WPA and the PIDA changed between the disclosures, the question of whether an event has been disclosed previously concerns the event, and not the test to be applied to it.

Poor practice and resistance to learning and improvement

1. The applicant's allegation of Dr Sundararajan failing to adhere to "good central lines practice",[242] was a disclosure relating to clinical practice, and the respondent's willingness to learn from its mistakes. As an allegation directed at the treatment of certain patients at the hospital by a consultant, it should be understood to be something that could potentially cause a substantial risk to the health of a significant portion of the public. However, the context provided by the applicant did not cast the allegation in this manner. The applicant did not make the allegation by reference to safety to the public. The allegation was made by reference to Dr Sundararajan's resistance to improving the practices of the consultants in respect of this particular procedure. The allegation need not be cast in the terms of the legislation if it "gives rise" to the risk described by the legislation.
2. However, even if it were established at the hearing to be correct that the central lines practice that was being employed was sub-optimal (and the applicant did not establish this), it would not reach the threshold of something that gave rise, or potentially gave rise, to a substantial risk to public health or safety. The proposition concerned one consultant, and there was no evidence as to how the practice was sub-optimal, whether the practice was widespread, whether this consultant had employed it on numerous occasions, or what the risk was that arose by its use.
3. If that allegation is combined with the applicant's examples of the resistance of some senior colleagues to learning and improvement, as evidenced (in his view) by their responses to his suggestions for improvement, it fails for the same reason. He did not show how, if the allegations were true, they even established the potential for a substantial risk to public health or safety. The applicant was not required to establish that when he made the allegation, he knew it to be true that the conduct gave rise to a substantial risk to public health or safety. However, nothing prevented him from demonstrating at the hearing that it was in fact true, or why he believed it to be true, but there was no attempt to do so. That perhaps highlights a difficulty in the applicant's case; he was asking the Tribunal to make findings about the potential causes and effects of particular actions or practices. However most, if not all, of those actions or practices were matters about which there might be a good deal of different opinion, and in respect of which the outcomes were subject to many alternative possibilities.

1. I consider that the claims in the third disclosure regarding the respondent's disregard for safe working hours were claims that had been previously made, and were not "disclosures". However, as there is some room for argument that the terms of the disclosures were different, it is necessary to consider them against the remaining criteria.
2. The applicant's contentions regarding the respondent's disregard for safe working hours, were not amenable to being grouped. It has been found earlier in this decision with respect to the second disclosure not to be public interest information pursuant to the PIDA and that remains unchanged as assessed by reference to the third disclosure.

Putting staff and patients at risk in relation to COVID-safe practices

1. The applicant's assertion was that the respondent failed to provide appropriate personal protective equipment during COVID. The applicant's evidence was that his face and head shape did not fit a standard mask and that this was the case for a small number of other staff. His proposal was that he wear different protective clothing which would fit and would also provide a higher degree of protection. The respondent chose not to take that option, citing the likely alarm it would cause in other staff if different equipment were being used by different staff members.[243] Instead, the respondent said that it deployed the applicant to other duties that did not require him to be masked.[244] The applicant said he was required to continue having unsafe contact with patients.[245]
2. The applicant's allegation was not put as part of a claim of lackadaisical practices by the respondent with other examples given; it stood alone.
3. Whilst it was not advanced by the respondent, the Tribunal is not satisfied that the information constituted a "disclosure" at all. The protocols for personal protective equipment during the period in which COVID-19 was being addressed by emergency measures were a matter of open debate and public reporting, both within South Australia and all around the world. The fact that the particular mask that the respondent provided to its employees was one that did not fit the entire workforce, and that decisions then were required to be made as to how to address the small proportion of employees for whom the masks were not a good fit, was not a matter that was amenable to disclosure to the respondent in August 2020. It was not esoteric.
4. Had the applicant been in possession of information that he knew was unknown to the respondent, and that concerned a heightened risk of the transmission of the Covid virus, it may have been a matter that caused a significant risk to the public or a substantial portion of the public, and therefore public interest information. But this was not the case.

1. The applicant's contentions in the third disclosure regarding the respondent's recruitment processes were not asserted to have amounted to maladministration or misconduct.[246] I do not understand the applicant to contend that they amount to public interest information.

1. To the extent that the third disclosure repeated earlier disclosures, those matters were not disclosed at all. In respect of the new information in the letter, the allegations of incivility not previously disclosed constituted public interest information because they potentially amounted to "misconduct".
2. Accordingly, it is necessary to consider whether the applicant had the requisite state of belief about the assertions, or whether they were made to an appropriate authority. He was required to reasonably suspect that the information raises a potential issue of corruption, misconduct or maladministration in public administration.
3. I accept the applicant's evidence that he believed that the events occurred. Dr Feeney was not called as a witness. Dr Sundararajan in evidence denied shouting and said it was "not in his nature".[247] It is difficult to determine whose account is accurate, but I accept that Dr Sundararajan was frustrated and spoke to the applicant in a manner which left the applicant feeling like he had been dealt with in an uncivil manner. It is consistent with the applicant's complaints that he believed that the conduct was intimidatory and bullying. The applicant's counsel referred, by way of a footnote, to the Public Sector Code of Ethics and stated that it requires that public [sector employees] must "at all times treat other person with respect and courtesy".[248]
4. I find that the conduct had the potential to amount to misconduct. Accordingly, it was a reasonable suspicion that the applicant entertained.
5. I find, however, that it was not made to the relevant authority. The relevant authority,[249] in accordance with s 5(5) of the PIDA, is the Commissioner for Public Sector Employment or "the responsible officer for the relevant public sector agency". The responsible officer is a person designated by the principal officer. The principal officer is the presiding officer of the board or committee if the agency consists of such a board or committee. As the agency did not consist of its governing board alone, the principal officer is the chief executive officer. The respondent submitted that the responsible officer, designated by the chief executive, is a person who has undertaken particular training and is formally appointed.[250]
6. The applicant did not refer to the PIDA in his third disclosure, or seek to claim its protection, although he described himself as a "whistleblower". I find that the disclosure was an attempt to achieve improvement to the culture of the RAH ICU with respect to patient care by describing a set of interactions, observations and opinions as to how that culture was deficient. I find that the allegations of incivility in the third disclosure were not made to the appropriate authority under the PIDA as an allegation of misconduct.

1. The applicant made disclosures on 8 May 2019, 29 May 2020 and 19 August 2020. With the exception of the rostering contention disclosed on 29 May 2020, and the allegations of incivility on 19 August 2020, the disclosures did not convey public interest information for the purposes of the WPA or the PIDA. To the extent that the rostering allegations had the potential to show maladministration in public administration, and as such constituted public interest information, the applicant's belief as to their truth was not reasonably held. The allegations of incivility made in the third disclosure were not made to the appropriate authority.

1. The Tribunal will hear from the parties as to the appropriate form of the orders consequential upon these findings and conclusions, including whether the confidentiality order made on 4 November 2024 ought to continue or be revoked.

[1] Letter dated 28 March 2022 from the Commissioner of Equal Opportunity to the Principal Registrar of the Tribunal.

[2] South Australian Civil and Administrative Tribunal Act 2013 s 33(1).

[3] Further and Better Particulars of Complaint dated 29 September 2023 at [69]. TB 9.

[4] WPA ss 5,7-9.

[6] Except for annexure KS-10, and the second sentence in paragraph [73] of the affidavit referring to annexure KS-10. Transcript 6 November 2024 p 15.

[7] Further and Better Particulars of Complaint dated 29 September 2023. TB 4.

[8] Further and Better Particulars of Complaint dated 29 September 2023. TB 4.

[9] Further and Better Particulars of Complaint dated 29 September 2023. TB 4.

[10] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 26. TB 663.

[12] Further and Better Particulars. TB 5.

[13] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 1. TB 45.

[14] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. TB 32.

[15] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. TB 32.

[16] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. TB 32.

[17] R8. Affidavit of Lynne Doherty sworn 27 September 2024. Annexure LD 1. TB 970.

[18] 'Incident Severity Ratings' are now used instead of SAC.

[19] R8. Affidavit of Lynne Doherty sworn 27 September 2024. Annexure LD 1. TB 970.

[20] R10. Affidavit of Michael Burton affirmed 26 September 2024. Annexure MB 5. TB 860.

[21] R10. Affidavit of Michael Burton affirmed 26 September 2024. Annexure MB 5. TB 860.

[22] R10. Affidavit of Michael Burton affirmed 26 September 2024. TB 824.

[23] R10. Affidavit of Michael Burton affirmed 26 September 2024. TB 824.

[24] Further and Better Particulars of Complaint dated 29 September 2023. TB 3.

[25] WPA s 4.

[26] (2013) 118 SASR 297.

[27] [2016] SASCFC 65.

[28] (2013) 118 SASR 297.

[29] Morgan v WorkCover Corporation (2013) 118 SASR 297 at [73].

[30] Morgan v WorkCover Corporation (2013) 118 SASR 297 at [71].

[31] Morgan v WorkCover Corporation (2013) 118 SASR 297 at [78].

[32] Morgan v WorkCover Corporation (2013) 118 SASR 297 at [77].

[33] [2016] SASCFC 65.

[34] (2013) 118 SASR 297.

[35] Machado v Underwood [2016] SASCFC 65 at [148].

[36] Machado v Underwood [2016] SASCFC 65 at [153].

[37] WPA s 4(1).

[38] Machado v Underwood [2016] SASCFC 65 at [149].

[39] Machado v Underwood [2016] SASCFC 65 at [157]- [159].

[40] Machado v Underwood [2016] SASCFC 65 at [161].

[41] Supreme Court of South Australia, Bleby J, Judgment No S6621, 9 April 1998, Unreported.

[42] Supreme Court of South Australia, Bleby J, Judgment No S6621, 9 April 1998, Unreported at pp 5-6.

[43] (2013) 118 SASR 297; [2016] SASCFC 65.

[44] WPA s 4.

[45] South Australia, Parliamentary Debates, Legislative Council 9-10 March 1993.

[46] There was some dispute as to whether it occurred on 7, 8 or 9 May 2019. Nothing turns on this, and the documentary evidence establishes the timeline of events.

[47] Applicant's Written Submissions dated 14 October 2024 at [31]. TB 1149-1150.

[48] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG-14. TB 597.

[49] R8. Affidavit of Lynne Doherty sworn on 29 September 2024. Annexure LD 1. TB 970.

[50] R8. Affidavit of Lynne Doherty sworn on 29 September 2024. Annexure LD 1. TB 976.

[51] R8. Affidavit of Lynne Doherty sworn on 29 September 2024. Annexure LD 1. TB 980.

[52] R8. Affidavit of Lynne Doherty sworn on 29 September 2024. Annexure LD 1. TB 985.

[53] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [69]-[75]. TB 38-39; A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG-26. TB 668-669.

[54] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [71]. TB 39.

[55] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [73]. TB 39.

[56] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [73]. TB 39.

[58] R8. Affidavit of Lynne Doherty sworn 29 September 2024 at [24]-[25]. TB 966; Transcript 5 November 2024 p 145.

[59] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [74]. TB 39.

[60] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [76]. TB 39; Transcript 4 November 2024 p 56-57.

[61] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [79]-[80]. TB 40.

[62] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [81]. TB 40.

[63] A2. Affidavit of Samuel Gluck affirmed on 19 August 2024 at [82]. TB 40. See also: R8. Affidavit of Lynne Doherty sworn 27 September 2024. Annexure LD 8. TB 1100.

[64] A2. Affidavit of Samuel Gluck affirmed on 19 August 2024 at [82]. TB 40. See also: R8. Affidavit of Lynne Doherty sworn 27 September 2024. Annexure LD 8. TB 1100.

[65] A2. Affidavit of Samuel Gluck affirmed on 19 August 2024 at [82]. TB 40.

[66] A2. Affidavit of Samuel Gluck affirmed on 19 August 2024 at [82]. TB 40.

[67] A2. Affidavit of Samuel Gluck affirmed on 19 August 2024. Exhibit SG-20. TB 638.

[68] A2. Affidavit of Samuel Gluck affirmed on 19 August 2024. Exhibit SG-20. TB 638.

[69] Further and Better Particulars of Complaint dated 29 September 2023 at [38]. TB 6.

[70] Further and Better Particulars of Complaint dated 29 September 2023 at [38]. TB 6.

[71] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [89]. TB 41.

[72] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [89]-[91]. TB 41-42.

[73] R10. Affidavit of Michael Burton affirmed 26 September 2024. Annexure MB 6. TB 863.

[74] R10. Affidavit of Michael Burton affirmed 26 September 2024. Annexure MB 6. TB 865.

[75] Transcript 4 November 2024 pp 106, 122-124.

[76] R10. Affidavit of Michael Burton affirmed 26 September 2024. Annexure MB 7. TB 867.

[77] R10. Affidavit of Michael Burton affirmed 26 September 2024. Annexure MB 7. TB 867.

[78] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 26. TB 666.

[79] Applicant's Written Submissions dated 14 October 2024 at [33]. TB 1150.

[81] Transcript 4 November 2024 pp 109-111, 114.

[82] Transcript 4 November 2024 pp 123-124.

[84] Respondent's Written Closing Submissions dated 21 February 2025 at [68].

[88] R8. Affidavit of Lynne Doherty sworn 27 September 2024 at [9], [12]-[15]. TB 964-965.

[89] R11. Affidavit of Krishnaswamy Sundararajan affirmed on 27 September 2024. TB 871.

[90] R11. Affidavit of Krishnaswamy Sundararajan affirmed 26 September 2024 at [16]. TB 873.

[91] R16. Affidavit of Stewart Moodie affirmed 27 September 2024 at [29]. TB 947.

[92] R17. Affidavit of Nicholas Edwards affirmed 27 September 2024 at [28]. TB 926.

[93] R15. Affidavit of Andrew Lavender affirmed 27 September 2024 at [18]. TB 955.

[94] R11. Affidavit of Krishnaswamy Sundararajan affirmed on 27 September 2024 at [21]. TB 873.

[95] R11. Affidavit of Krishnaswamy Sundararajan affirmed on 27 September 2024 at [21]. TB 873.

[96] R11. Affidavit of Krishnaswamy Sundararajan affirmed on 27 September 2024 at [24]-[25]. TB 874.

[97] R11. Affidavit of Krishnaswamy Sundararajan affirmed 27 September 2024 at [26]. TB 874.

[98] R11. Affidavit of Krishnaswamy Sundararajan affirmed 27 September 2024 at [34]. TB 875.

[99] Morgan v WorkCover Corporation (2013) 118 SASR 297.

[100] Morgan v WorkCover Corporation (2013) 118 SASR 297.

[101] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 26. TB 669.

[102] Morgan v WorkCover Corporation (2013) 118 SASR 297 at [72].

[103] Morgan v WorkCover Corporation (2013) 118 SASR 297 at [73] - [74].

[104] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 26. TB 666.

[105] R8. Affidavit of Lynne Doherty sworn 27 September 2024 at [17]. TB 965.

[106] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [67]. TB 38.

[107] R16. Affidavit of Stewart Moodie affirmed 27 September 2024 at [25]-[26]. TB 949-950; R11. Affidavit of Krishnaswamy Sundararajan affirmed 27 September 2024 at [27]. TB 874; R8. Affidavit of Lynne Doherty sworn 27 September 2024 at [13], [19]-[20]. TB 965-966; R17. Affidavit of Nicholas Edwards affirmed 27 September 2024 at [27]. TB 926.

[108] R15. Affidavit of Andrew Lavender affirmed 27 September 2024 at [18]. TB 958.

[109] R15. Affidavit of Andrew Lavender affirmed 27 September 2024 at [18]. TB 958.

[110] R8. Affidavit of Lynne Doherty sworn 27 September 2024 at [14]. TB 965.

[111] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [43] to [60].

[112] Applicant's Written Closing Submissions dated 17 January 2025 at [71].

[113] PIDA s 4.

[114] PIDA s 4.

[115] PIDA s 5(3).

[116] PIDA s 4.

[117] PIDA s 5(4).

[118] Independent Commissioner Against Corruption Act 2012 (as in force 4 September 2017 to 30 June 2020).

[119] Applicant's Written Closing Submissions dated 17 January 2025 at [44].

[121] Applicant's Written Closing Submissions dated 17 January 2025 at [64].

[122] [2023] SASC 11 at [506] - [507]. The Judge's reasons were not disturbed on appeal.

[123] Morgan v WorkCover Corporation (2013) 118 SASR 297.

[124] A3. Second Affidavit of Samuel Gluck affirmed 11 October 2024. Exhibit SG 39. TB 1135.

[125] A3. Second Affidavit of Samuel Gluck affirmed 11 October 2024. Exhibit SG 39. TB 1138. Transcribed as per original.

[126] A3. Second Affidavit of Samuel Gluck affirmed 11 October 2024. Exhibit SG 39. TB 1138.

[127] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [95]-[97]. TB 42; Transcript 5 November 2024 p 5.

[128] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [97]. TB 42.

[129] Applicant's Written Closing Submissions dated 17 January 2025 at [43].

[130] Applicant's Written Closing Submissions dated 17 January 2025 at [44].

[131] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [95]. TB 42.

[132] Applicant's Written Submissions dated 14 October 2024 at [40]. TB 1151.

[133] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [96]. TB 42-43.

[134] Transcript 5 November 2024 p 4-6.

[135] R15. Affidavit of Andrew Lavender affirmed 27 September 2024. TB 955.

[136] R15. Affidavit of Andrew Lavendar affirmed 27 September 2024 at [12]. TB 957.

[137] Respondent's Written Closing Submissions dated 21 February 2025 at [89].

[138] Transcript 7 November 2024 p 14.

[139] Transcript 7 November 2024 p 12.

[141] Transcript 5 November 2024 p 10.

[142] Transcript 5 November 2024 p 10.

[143] Transcript 5 November 2024 pp 7-8.

[144] Transcript 5 November 2024 p 12.

[145] Respondent's Written Closing Submissions dated 21 February 2025 at [89] - [92].

[146] Respondent's Written Closing Submissions dated 21 February 2025 at [83].

[147] Respondent's Written Closing Submissions dated 21 February 2025 at [83].

[148] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [98]. TB 42.

[149] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [98]. TB 42.

[150] Respondent's Written Closing Submissions dated 21 February 2025 at [79].

[151] Respondent's Written Closing Submissions dated 21 February 2025 at [79].

[153] Transcript 7 November 2024 p 11.

[154] R15. Affidavit of Andrew Lavender affirmed 27 September 2024 at [13]. TB 957.

[155] Transcript 7 November 2024 p 12.

[156] Transcript 7 November 2024 p 14.

[157] A3. Second Affidavit of Samuel Gluck affirmed 11 October 2024 at [43]. TB 1113-1114.

[158] In accordance with s 5(5) of the PIDA.

[159] Transcript 5 November 2024 p 15.

[160] Transcript 5 November 2024 p 15.

[161] Respondent's Written Closing Submissions dated 21 February 2025 at [84].

[162] Transcript 5 November 2024 p 15.

[163] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 677.

[164] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 686.

[165] A2. Affidavit of Samuel Gluck affirmed 19 August 2024 at [38]. TB 35.

[166] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 686.

[167] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 686.

[168] Applicant's Written Closing Submissions dated 17 January 2025 at [74].

[169] For example, the Applicant's Written Closing Submissions dated 17 January 2025 at [77] assert that certain information amounts to health information because it "puts both patients and staff at risk."

[170] Dennis C Pearce AO, Statutory Interpretation in Australia (LexisNexis, 2024) [9.1].

[171] Boyle v Director of Public Prosecutions (Cth) (2024) 332 IR 205 per Lovell JA (Doyle and David JJA agreeing on this ground) at [83].

[172] [2016] SASCFC 65.

[173] Machado v Underwood [2016] SASCFC 65 at [149].

[174] Respondent's Written Closing Submissions dated 21 February 2025 at [109].

[175] [2016] SASCFC 65.

[176] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 677.

[177] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 678.

[178] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 678.

[179] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 678.

[180] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 678.

[181] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 678.

[182] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 678.

[183] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[184] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[185] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[186] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[187] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[188] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[189] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[190] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 680.

[191] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 680.

[192] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 680.

[193] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 680.

[194] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 680 - 681.

[195] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 681.

[196] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 681.

[197] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 681.

[198] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[199] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[200] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[201] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[202] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[203] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[204] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[205] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 682.

[206] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 683.

[207] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 683.

[208] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 683.

[209] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 683.

[210] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 683.

[211] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 683.

[212] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 684.

[213] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 684.

[214] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 684.

[215] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 684.

[216] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 684.

[217] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 685.

[218] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 685.

[219] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 685.

[220] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 685.

[221] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 685.

[222] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 685.

[223] Supreme Court of South Australia, Bleby J, Judgment No S6621, 9 April 1998, Unreported.

[224] Supreme Court of South Australia, Bleby J, Judgment No S6621, 9 April 1998, Unreported at p 6.

[225] Supreme Court of South Australia, Bleby J, Judgment No S6621, 9 April 1998, Unreported at p 5-6.

[227] Transcript 5 November 2024 p 60.

[228] Applicant's Written Closing Submissions dated 17 January 2025 at [75], [77] - [79].

[229] Applicant's Written Closing Submissions dated 17 January 2025 at [80].

[230] Applicant's Written Closing Submissions dated 17 January 2025 at [75].

[231] Respondent's Written Closing Submissions dated 21 February 2025 at [108].

[232] Respondent's Written Closing Submissions dated 21 February 2025 at [111]-[113].

[233] Items iii, viii, x, xv, xxix and xxxvii from the list of distilled propositions at [180], excluding those propositions that are not disclosures or not pursued by the applicant. Note that some groups have overlapping membership.

[234] Items i, xi, xix, xxi, xxii, xxiii, xxiv, xxvi and xlvii from the list of distilled propositions.

[235] Items i, ii, iv, v, vii, viii, ix, xi, xii, xiii, xiv, xvii, xix, xxiii, xxiv, xxviii, xxx, xxxvi, xxxvii, xxxix, xl, xliii, xliv, xlvi and xlvii from the list of distilled propositions.

[238] Items xxxv, xxxvi, xxxvii, xxxix and xl of the list of distilled propositions.

[239] Items xlv, xlvi and xlvii of the list of distilled propositions.

[240] Item xv in the list of distilled propositions. Applicant's Written Closing Submissions dated 17 January 2025 at [75].

[241] Item x in the list of distilled propositions.

[242] A2. Affidavit of Samuel Gluck affirmed 19 August 2024. Exhibit SG 28. TB 679.

[243] Affidavit of Stewart Moodie affirmed on 27 September 2024 at [60]. TB 952-953.

[244] Affidavit of Stewart Moodie affirmed on 27 September 2024 at [61]. TB 953.

[245] A3. Second affidavit of Samuel Gluck affirmed 11 October 2024 at [39]. TB 1113.

[246] Applicant's Written Closing Submissions dated 17 January 2025 at [24], [74]-[81].

[247] Transcript 6 November 2024 p 77.

[248] Applicant's Written Closing Submissions dated 17 January 2025 at [76] and footnote 137.

[249] In the circumstances of this disclosure.

[250] Respondent's Written Closing Submissions dated 21 February 2025 at [114] and footnote 121.