Police Federation of Australia v Nixon

Police Federation of Australia v Nixon - [2008] FCA 467 - FCA 2008 case summary — Zoe

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REASONS FOR JUDGMENT 1 Proceedings have been instituted in this Court by the Police Federation of Australia ("PFA") and The Police Association ("TPA") against the first respondent, Christine Nixon ("the Commissioner"), who is the Chief Commissioner of the Victoria Police and the second respondent, the State of Victoria. By their amended statement of claim, the PFA and TPA have alleged that the Secretary of TPA, a Senior Sergeant Paul Mullett ("Mullett") has been engaged on behalf of TPA in industrial negotiations and the prosecution in the Australian Industrial Relations Commission ("the AIRC") of industrial disputes with the Commissioner and has also campaigned against proposed changes to the Police Regulation Act 1958(Vic)("the PRA"). It is further alleged in the amended statement of claim that Mullett has convened meetings of members, or delegates' conferences of TPA which have carried motions of no confidence in the Commissioner. 2 A separate part of the amended statement of claim alleges that Mullett and TPA successfully made political representations which resulted in an agreement being concluded, without any involvement by the Commissioner, about matters to be included in a new enterprise bargaining agreement. It is also asserted that the PFA had, in August and September 2007, instigated industrial action by its members in support of what it claimed should be contained in the proposed new enterprise bargaining agreement. 3 It is further alleged in the amended statement of claim that Mullett has convened meetings of members or delegates' conferences of TPA which have carried motions of no confidence in the Commissioner. As well, the amended statement of claim recited various complaints by the Commissioner that TPA had misrepresented, on various issues, her position and had made her personally a target of aspects of its campaigns. 4 A specific focus of hostile relations between the Commissioner on the one hand, and Mullett and TPA on the other, is identified in par 141 of the amended statement of claim as "the Bullying Allegations." That paragraph, omitting particulars, is in these terms; '141. On 3 May 2006 Nixon wrote to Mitchell and the Executive of TPA stating that:

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(a) Is the resumption of the investigation of the Bullying Allegations capable of constituting an injury to Mullett or an alteration of his position to his prejudice? 13 Reliance was placed on behalf of the applicants on Kimpton v Minister for Education of Victoria (1996) 65 IR 317 where North J declined a motion to strike out similar proceedings under the corresponding provisions of the Industrial Relations Act 1988 (Cth) observing, at 319; 'I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration.' 14 Counsel for the applicants similarly invoked the observations in the joint judgment of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, at 17 when speaking of the proscribed conduct described in what was then s 298K(1) of the WRA. Their Honours there said; 'Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. Proof of the reason for engaging in the prescribed conduct is the subject of s 298V.' 15 As well as exposing Mullett to the exercise of coercive powers conferred by the PRA, the conduct of the resumed investigation by the ESD was said to involve "an element of odium" which amounted to "an adverse affection" in the sense used by the High Court in the passage just quoted. 16 By way of further illustrating the unusual course which is said to have been followed in relation to the Bullying Allegations, the applicants pointed to the acknowledgment at par 70 of the affidavit of Cornelius that; 'On 21 September 2006, all staff of Victoria Police were notified of the outcome of the initial investigation and the referral of the continued investigation to WorkSafe, by way of a general email to all staff.' 17 The evidence suggests that material by way of propaganda has been distributed by both the Police Force and TPA, but Davies has deposed that circulation by the Police Force of emails to all members of the Force in relation to the Bullying Allegations has, in his experience, been unprecedented. 18 Although Davies acknowledged that the Ombudsman's report of April 2007 had recommended that the Bullying Allegations should be investigated further by both the Police Force and WorkSafe, he contended that the recommendation in respect of WorkSafe could not warrant re-opening the investigation to the extent that it concerned Mullett. That was because the only relevant Workcover claim by an employee of TPA based on an anxiety disorder claimed to have been caused by workplace bullying implicated another police officer, a Mr Kent, and made no allegation against Mullett. In combination, it was said on behalf of the applicants, the unusual aspects of the investigation of the Bullying Allegations raise serious questions to be tried as to whether, for a prohibited reason, Mullett has been injured in his employment or had his position altered to his prejudice; see Squires v Flight Stewards Association of Australia (1982) 2 IR 155, at 164 and Health Services Union of Australia v State of Tasmania (1996) 73 IR 140, at 145. 19 The PRA appears to draw a distinction between breaches of discipline by members of the Police Force and conduct which is capable of being the subject of a complaint and investigation under Part IVA of the PRA. Part IVA contains s 86A defining "conduct" and "serious misconduct" as follows: 'conduct, in relation to a member of the force, means -

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26 Sections 73 and 74 provide respectively for the inquiry into, and determination of, a charge to be conducted by the Chief Commissioner or an officer authorised by him or her and for the classes of persons who may be authorised by the Chief Commissioner to exercise those functions. Section 75 prescribes the procedure to be observed in the conduct of an inquiry and s 76 stipulates a range of determinations which may be made if the person conducting the inquiry finds that the charge has been proved. 27 The evidence discloses that Cornelius holds an active delegation from the Chief Commissioner under s 6A of the PRA. That delegation is said to be "in relation to the conduct of investigations into alleged disciplinary matters involving sworn members of Victoria Police under Parts IV and IVA of the [PRA]". According to Cornelius, on 10 March 2006 he interviewed one of the two confidential complainants who had made allegations of bullying by Mullett in his capacity as Secretary of TPA. That complainant indicated that he or she intended the complaint to be treated as an allegation of serious misconduct and investigated under the PRA. After receiving further details from the complainant, Cornelius formed the view that "at least some of the conduct alleged might have amounted to 'serious misconduct' if proven after a thorough investigation." 28 In his affidavit sworn 30 January 2008, Cornelius, who has at all material times been the officer in charge of the ESD, also deposed that on 4 May 2006 he decided that, in the circumstances which included the fact that some members of the Executive of TPA "were/are serving members of ESD", the initial investigation of the Bullying Allegations should be conducted by two officers outside ESD, namely Superintendent Biggin ("Biggin") and Superintendent Cartwright ("Cartwright"). Those officers were later instructed to commence their investigation on 24 May 2006. 29 In pars 55 to 65 of the same affidavit, Cornelius described steps taken in, and reports made to him of, the investigations undertaken by Biggin and Cartwright. Those steps taken included interviews with various witnesses and the reports to Cornelius enabled him to depose that "Some of the alleged behaviours identified at the preliminary level included physical confrontations, bullying behaviour, intimidation and harassment." 30 Cornelius further deposed that "The Investigations also noted that the allegations against Senior Sergeant Mullett could not be particularised without breaching the obligation to protect the identity of the complainants and witnesses." That part of the account by Cornelius concluded with the making of a report by Biggin and Cartwright of their initial investigation and the decision by the Commissioner, on the advice of Cornelius, to refer the Bullying Allegations for investigation by WorkSafe because of the inability of Biggin and Cartwright to complete a full investigation without the benefit of evidence from non-police witnesses. On 14 September 2006, a copy of the initial investigation report was forwarded to the Director of the OPI under cover of a letter from Cornelius which, omitting formal parts, was in these terms; 'I enclose a copy of the initial investigation report in relation to this matter.

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31 By letter dated 10 November 2006, WorkSafe advised Cornelius, as summarised by him, that; · WorkSafe Inspectors had interviewed management representatives; · an inspection of the workplace was undertaken; · documents were provided to support the proposition that systems of work existed at TPA for the management of bullying allegations; · TPA Health and Safety Representatives indicated in writing that they were not prepared to speak to WorkSafe; and · in the absence of further evidence of bullying activity and based on the materials placed before the Inspectors, no further action would be taken by WorkSafe at that time. 32 At the instigation of the complainants who had made the Bullying Allegations, the Ombudsman undertook his own investigation of the matter and, on 16 November 2006, the Deputy Ombudsman confirmed that, until that investigation had been completed, Victoria Police should take no further action in relation to the allegations. 33 The Ombudsman's report, already noted at [18] of these reasons, was tabled in the Victorian Parliament on 18 April 2007. It recorded the Ombudsman's criticisms of the investigations of the Bullying Allegations which, to that date, had been carried out by two WorkSafe Inspectors. The Ombudsman's report also identified what were seen as deficiencies in the PRA including the absence of a counterpart to s 102EA in respect of the secondment of members of Victoria Police to TPA. Section 102EA provides for secondment of members of the Force to the OPI and by sub-s (4) which, in its context, mirrors s 69(3) reproduced at [23] above, stipulates; 'If the Director reasonably suspects that a member of the force who is seconded to the Office of Police Integrity has committed a breach of discipline under section 69 while seconded, the Director may refer the matter to the Chief Commissioner to determine whether action should be taken under Part IV in respect of the member.' 34 Under the heading "Conclusions", the Ombudsman's report contained this paragraph; 'I am of the view that the whistleblowers and other witnesses are much more robust, forthright and resilient than they appear to be given credit for. While I acknowledge the constraints the Act has placed on Victoria Police, the whistleblowers should be asked if they are prepared to have their identity revealed for the purposes of an investigation. I also consider that it is unsatisfactory that the allegations have not been put to the Secretary of The Police Association. The whistleblowers and other witnesses have indicated to my office that they are willing to cooperate with an investigation, including disclosing their identity, if necessary.' The Ombudsman's report then ended with these recommendations; 'Recommendation - 4

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35 It appears that, after the Ombudsman's report had been tabled, the Bullying Allegations were referred to WorkSafe's Investigations Division. As well, investigations were continued or resumed within Victoria Police. The fact that the two investigations were proceeding in parallel did not arouse concern on either side and, on 11 September 2003, the Director of the Legal Services and Investigations Division of WorkSafe wrote to Cornelius a letter which concluded; 'While ultimately it is a matter for Victoria Police, we consider that our inquiries and the outcome of WorkSafe's investigation should not impact on your ability to pursue a parallel investigation into this conduct.' 36 One outcome of WorkSafe's investigation was the preparation of a report by Dr Lyon QC and Mr Garry Livermore ("the Lyon Report") a document of some 100 pages entitled "The Regulation of Workplace Bullying July 2007". A copy of the Lyon Report was furnished to Biggin and Cartwright but their investigation of the Bullying Allegations was suspended after Cornelius and the Commissioner became aware that the OPI was conducting private and public hearings into alleged hampering of, or interference with, a taskforce set up within Victoria Police and code-named "Operation Briars". The allegations with which the OPI was concerned suggested that Mullett had been implicated in hampering or interfering with Operation Briars. In the event, Mullett was called as a witness at one of the public hearings conducted by the OPI. In those circumstances Cornelius instructed Cartwright that, in pursuing the investigation of the Bullying Allegations, he should not have recourse to s 86Q of the PRA in relation to any person who was a potential witness at the OPI hearings. 37 After the completion of the public and private hearings in the course of the OPI inquiry which was conducted by the Hon Murray Wilcox QC as a delegate of the Director of OPI, Cornelius received a recommendation on 10 December 2007 that the following steps should be taken in furtherance of the investigation of the Bullying Allegations:- · 'review the existing witness statements (a task already completed);

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38 Between 19 and 24 December 2007 Cornelius discussed the preparation of a briefing paper for the Commissioner and a draft letter from her to TPA advising it of the continuation of the investigation of the Bullying Allegations and the intention to interview relevant witnesses using, if necessary, the coercive powers afforded by s 86Q of the PRA. In the course of his communications with Cornelius, Cartwright intimated that he intended to have, on 3 January 2008, a detailed discussion with WorkSafe to learn what progress had been made in its parallel investigation and that "his briefing would be finalised on that date". However, the final draft of Cartwright's brief for the Commissioner was prepared on 31 December 2007 and presented to the Commissioner on 8 January 2008 without incorporating the results of Cartwright's discussions of 3 January 2008 with WorkSafe if, in fact, they occurred. 39 On 8 January 2008, according to Cornelius, he, the Commissioner and Cartwright were unanimously of the view that; 'the investigation had been delayed significantly already, that it was appropriate and in the best interests of the investigation and the complainants that it proceed as expeditiously as possible and that to do so was merely acting on the Ombudsman's recommendation". 40 Accordingly, the Commissioner "signed off" on the recommendation in the briefing paper and signed the letter to TPA, dated 8 January 2008, part of which is reproduced at [5] above. However, the letter was not delivered to TPA until 18 January 2008, a delay which has been explained by Cornelius as attributable to Biggin's absence on leave until 17 January 2008. 41 It was argued on behalf of the respondents that to be subject to a disciplinary investigation does not amount to an injury in employment or an alteration of the position of an employee to his or her prejudice in the sense used in s 792(1) of the WRA; see Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93. The fact that the coercive powers conferred by s 86Q of the PRA can be called in aid of such an investigation does not, the respondents contended, advance the case of the applicants. Moreover, because s 86Q is capable of being applied to all potential witnesses who are members of Victoria Police, its application could not involve any "singling out" of Mullett. Nor, since he has already been suspended from the Police Force in relation to other serious matters, could the resumption of an investigation into the Bullying Allegations against him have a significant detrimental affect on his reputation or standing. 42 In the light of the history which I have just recounted, I consider that a serious question remains as to whether the resumption of the inquiry by Biggin and Cartwright amounts to an injury to Mullett in his employment. Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect. For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place. Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known. 43 However, the investigation within Victoria Police of the Bullying Allegations against Mullett cannot, on the evidence as it stands, be regarded as similarly innocuous. It has, perhaps necessarily, been notified to the President and Executive of TPA but has also been brought by a general email to the attention of "all staff of Victoria Police." A related consideration is the apparent election by or on behalf of the Commissioner not to attempt to resolve the complaints underlying the Bullying Allegations by conciliation as contemplated by s 86O(2) of the PRA. 44 Another potential source of injury in employment in the sense used in s 792 of the WRA is the facility afforded by s 86Q of the PRA for the employee under investigation to be directed to furnish any relevant information, produce any relevant document or answer any relevant question. The present respondents have not disavowed an intention to subject Mullett to a direction of that kind. Indeed, it is my understanding that, unless restrained, they propose that Biggin and Cartwright should give him a direction under s 86Q in the near future. 45 Another consideration which would enable the resumption of the investigation of the Bullying Allegations to inflict injury on Mullett is the unique position which he occupies as Secretary of TPA on secondment from Victoria Police. That position requires him to act as spokesman on industrial issues, like salaries and working conditions, for members of the Force generally and, perhaps, also for individual members in relation to disciplinary matters. His ability to retain the confidence of members of Victoria Police in his discharge of those functions is likely to be impaired significantly once it becomes generally known that an investigation of long standing and already attended by intense publicity has been resumed. Although it is undesirable at this interlocutory stage to venture a concluded view on the matter, it is my opinion that the resumption of the investigation on behalf of EDS is capable of constituting an injury to Mullett in his employment by Victoria Police within the meaning of s 792(1) of the WRA. 46 In light of the conclusion just reached on "injury", it is strictly unnecessary to consider the alternative question of whether the resumption of the EDS investigation of the Bullying Allegations can amount to an alteration of Mullett's position as an employee of Victoria Police. However, in my view, "alteration" in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. Examples of relevant substantive changes include reduction of salary, deprivation of overtime, diversion to a less congenial shift, forced taking of leave, transfer to lower duties or suspension from duties. Some changes of this kind are expressly contemplated as being within the disciplinary regime for Victoria Police instituted by s 71 of the PRA and noted at [24] above. 47 I am conscious that the tentative view just expressed diverges from that of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466, where his Honour observed, at 490 [89]; 'I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven.' (emphasis added) 48 I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute "an adverse affection of, or deterioration in, the advantages enjoyed by the employee" in the sense used by the High Court in the passage from Patrick Stevedores quoted at [14] above. Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee. That is the significance of the words to which I have added emphasis in the extract from Goldberg J's reasons reproduced at [47] above. Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely "potential." 49 In the present case, it seems to be common ground that the Commissioner's action on 15 November 2007 in suspending Mullett from the Police Force and prohibiting him from entering any police premises unless directed to do so was a response to what was seen to be his conduct in relation to Operation Briars as revealed in the hearings conducted by the OPI. It follows that neither of those alterations of Mullett's position as an employee of Victoria Police was a consequence of any decision to resume the investigation by EDS of the Bullying Allegations.

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52 Sub-section 809(1) corresponds with what was previously s 298V of the WRA, of which Wilcox and Cooper JJ observed in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, at 500 [109]; 'Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions, and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507.' 53 The invocation of s 809(1) raises the subsidiary question of whether the rebuttable presumption is available to applicants, like the present, who, on an interlocutory motion, seek injunctive relief pending the final hearing and determination of their claim. Sub-section 809(2) of the WRA provides; 'This section does not apply in relation to the granting of an interim injunction.' 54 That sub-section was not present in the WRA at the time when s 298V was in force and its absence allowed Wilcox and Cooper JJ to say in Davids Distribution Pty Ltd v National Union of Workers (supra), at 501 [110]; 'Where there is an application for interim relief in proceedings under the Division, the onus remains upon the applicant to demonstrate that there is a serious question to be tried that the dismissal occurred for a prohibited reason. If a serious question to be tried is made out in respect of the other ingredients of the alleged contravention, s 298V operates to establish there is a serious question to be tried that the dismissal was for a prohibited reason. It remains available to the employer to demonstrate at the interlocutory stage that the reason for the dismissal was other than for a prohibited reason. The weight of that evidence may be such as to persuade the court there is no serious question to be tried.' 55 Counsel for the applicants contended that the new s 809(2) is confined in its operation to interim injunctions strictly so-called and allows the statutory presumption created by s 809(1) to continue to have, in relation to contested applications for interlocutory injunctions, the full force and effect discussed in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463. 56 Counsel for the respondents argued for a wider interpretation of "interim injunction" in s 809 of the WRA. They referred to the discussion by Gaudron J in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 of what was formerly s 298U of the WRA. In that case, her Honour observed, at 56 [110]; 'The view that s 298U should be construed as applying to conduct alleged to contravene a provision of Pt XA is also borne out by s 298U(e), which allows for "injunctions (including interim injunctions)". Although the expression "interim injunction" is sometimes used in a technical sense to mean an injunction granted until the happening of some specific event (such as a named day or further order) [Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed (1992), par 2183] and the expression "interlocutory injunction" is sometimes used to mean an injunction until the final hearing or further order [Spry, Equitable Remedies, 5th ed (1997), p 508], it is not uncommon for the expression "interim injunction" to be used more widely so as to include relief in the nature of an interlocutory injunction. "Interim injunction" is used in that sense in s 80(2) of the Trade Practices Act 1974 (Cth) [See, eg, World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 185, per Bowen CJ], which provides that "the Court may grant an interim injunction pending determination of an application under subsection (1)". It would not be surprising if the words "interim injunction" were used in the same sense in s 298U(e) of the Act [See the discussion in World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 198-199, per Brennan J; cf ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 263, per Gummow J; Spry, Equitable Remedies, 5th ed (1997), pp 445-446].' 57 In the same case, Callinan J left the question open, saying, at 76 [170]; '… The principles governing the determination of applications for interlocutory injunctions are well established. First, the Court must decide whether there is a serious question to be tried. If the answer to that question is an affirmative one, then the Court must consider whether the balance of convenience favours the grant of the relief sought. Sometimes interim injunctions and interlocutory injunctions are spoken of as if they are interchangeable terms. The former is more appropriately used in the case of an injunction granted for a finite period usually brief and sometimes ex parte. The latter is usually granted to preserve the status quo pending trial. The Workplace Relations Act in one of the sections (s 298U(e)) with which the Court is concerned, uses the term "interim injunction", and it is not clear in which sense the Act uses it.' 58 The interpretation favoured by the respondents was also said to be supported by what is now s 838 of the WRA which provides; 'If, under a provision of this Act, a court may grant an injunction, the court may, if in its opinion it is desirable to do so, grant an interim injunction pending its decision on the granting of an injunction.' 59 Counsel for the respondents also referred to Schedule 1 to the Explanatory Memorandum which accompanied the Workplace Relations Amendment Act (Work Choices) Bill 2005. Items 2613-2616 of that Schedule sought to explain the effect of the proposed s 270 which later became s 809 of the WRA. Those items recited; '2613 Subsection 270(1) would reverse the onus of proof applicable to civil proceedings for a contravention of a civil remedy provision in proposed Part XA. It is based upon pre-reform section 298V of the WR Act.

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60 Item 2616 provides some support for the respondents' contention that s 809(2) was intended to make the reverse onus of proof imposed by s 809(1) unavailable to support the grant of both an interlocutory injunction and an "interim injunction" in the narrower sense of the first grant of injunctive relief made after an ex parte application. However, the Explanatory Memorandum does not cast any light on how the insertion of what is now s 809(2) addresses "the problems that can arise from the interaction of the reverse onus with the 'balance of convenience' test that applies to interim injunctions." 61 The drafting of the new s 809(2) is far from satisfactory in light of the ambiguity inherent in the phrase "interim injunction" in the context of the WRA. Nor does the Explanatory Memorandum cast any useful light on what effect, if any, is to be given to the presumption in resolving, as the first step in determining an application for an interlocutory injunction, whether there is a serious question to be tried at the final hearing of the action. 62 It seems clear enough that s 809 creates a rebuttable presumption of law. However, as the authorities illustrate a presumption of that kind may take one of two forms. One form has the effect merely of shifting to a respondent the burden of going forward with evidence, in a case like the present, as to whether the employer's conduct was actuated by a proscribed reason. If the respondent adduces some relevant evidence, the court has to resolve, in the light of all the evidence, whether the applicant has discharged the ultimate burden of proving, or risk of non-persuasion, that the conduct was carried out for a proscribed reason. That seems to be effect of the passage from the judgment of Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487which was relied on by Wilcox and Cooper JJ in the passage from Davids Distribution Pty Ltd v National Union of Workers (supra)which I have reproduced at [52] above. A similar understanding, I consider, informed the observation of Lord Reid about s 26 of the Family Law Reform Act 1969 in S v S [1972] AC 24 where his Lordship said, at 41; 'That means that the presumption of legitimacy now merely determines the onus of proof. Once evidence has been led it must be weighed without using the presumption as a make-weight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is not other evidence to counterbalance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the court is unable to reach a decision on it. I cannot recollect ever having seen or heard of a case of any kind where the court could not reach a decision on the evidence before it.' 63 On the other hand, a contrasting effect of a rebuttable presumption of law "is to shift to the other party not only the evidential burden but also the legal burden"; see Cross on Evidence, 7th Australian Edn p 276 [7260]. In Heidt v Chrysler Australia Ltd (1976) 13 ALR 365 Northrop J regarded s 5(4) of the Conciliation and Arbitration Act 1904, one of the forerunners of s 809(1) of the WRA, as being of that character. In that case, his Honour observed, at 373; 'In the hearing of an information under s 5 of the Act, the informant bears the normal onus of proof of establishing the guilt of the defendant beyond reasonable doubt. The "burden of proof" in this sense is stable but the burden of introducing evidence at any particular time may shift from time to time: see Purkess v Crittenden (1965) 114 CLR 164 per Barwick CJ, Kitto and Taylor JJ, at 167-8. The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer. It is for this reason that s 5(4) is of such importance - it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities: Bowling v General Motors-Holdens Pty Ltd, supra, at 200-1.

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64 That view was also taken of what was formerly s 298K of the WRA by R D Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, at 568 [221]; see also McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 per Greenwood J, at 192-194 [328]-[336]. 65 A similar explanation of the effect of s 5(4) of the Conciliation and Arbitration Actwas advanced by Mason J with whom Gibbs, Stephen and Jacobs JJ agreed in General Motors-Holden's Pty Ltd v Bowling (1977) 51 ALJR 235 where his Honour observed, at 241; 'Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.' 66 The conclusion that s 298V (now s 809(1) of the WRA) is a true reverse onus provision was also reached by Dr Jessup QC (as his Honour then was) in The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996 (2002) 15 AJLL 198, at 204-207. 67 I have examined at some length the authorities on the nature of the presumption created by s 809(1) and its predecessors because the examination exposes a real difficulty in construing and applying the limitation imported by s 809(2) that the presumption "does not apply in relation to the grant of an interim injunction." One approach is for a court considering a motion for an interim or interlocutory injunction (on the wider view of "interim injunction" more favourable to the respondents) to exercise its discretion as if s 809(1) did not exist. 68 However, that approach might, in some cases, create an insuperable difficulty for an applicant for interlocutory relief in making out a serious question to be tried where one of the issues to which the question must be directed is the reason or reasons which actuated the alleged conduct of the respondent. That reason or those reasons are usually peculiarly within the knowledge of the respondent and a large body of authority suggests that the policy discernible as underlying Part 16 of the WRA is that a respondent should be relieved of the burden of proving the respondent's reason or reasons; see eg Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 where Branson J observed, at [161]-[162]; '161 … …Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another.

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69 If the effect of s 809(23) is to require an applicant to demonstrate, in the absence of any evidence at all from the respondent, a serious question to be tried as to each element of the cause of action, including the respondent's reason or reasons for the impugned conduct, the applicant may suffer irreparable damage before he or she can be accorded a final trial at which, ex hypothesi, the presumption would enable the cause of action to be made out. I consider that such a restrictive and apparently unjust interpretation should only be given to a provision which occurs in what seems to be a beneficial or facultative legislative scheme if the language of the sub-section intractably requires it. In my view, a construction more consonant with the statutory context and history and the preparatory material is that s 809(2) precludes the court from finding, on an application for an interim or interlocutory injunction, even provisionally, by recourse solely to the presumption, that the respondent's conduct was for a proscribed reason or for reasons that included a proscribed reason. However, I do not construe s 809(2) as preventing the court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent as part of exercising the general discretion to grant or withhold interlocutory relief. This approach, in my view, is consistent with that long taken by courts of equity in undertaking what are often necessarily limited reviews of evidence in the course of deciding whether to grant interlocutory injunctions. That traditional approach was illustrated in Municipal Council of Rockdale v Municipal Council of Kogarah (1926) 26 SR(NSW) 552 where Long Innes J said, at 554; 'In order to entitle a plaintiff to an interlocutory injunction it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing, and that the plaintiff has made out a prima facie case; that is, that if the evidence remains as it is, it is probable that at the hearing the plaintiff will get a decree in his favour: Preston v Luck (27 Ch D 497, at 505, 506); Challender v Royle (36 Ch D 425, at 436).' 70 A similar understanding, I believe, informs the observation of Burchett J (dissenting) in Davids Distribution Pty Ltd v National Union of Workers (supra),at 507 [124]-[125] that: '124 …… The only basis on which the respondent suggests an affirmative answer could be made to this question is to be found in s 298V. But, in my opinion, that would be to put on the section a weight it cannot bear. Its function is not to transform a case, to change the complexion of the facts; its function is to raise (via a presumption) an evidentiary onus. (Of course, at the interlocutory stage, the burden on an applicant would anyway be only to show a serious question to be tried.) But the s 298V onus was discharged when the circumstances were revealed. Because of the gaps in the evidence, it was (I am prepared to assume) not discharged to the full extent of proof that the sole reason for the dismissals was that given. But it was discharged to the extent that the circumstances showed clearly the nature of the dispute to which only any hidden reason must, as a matter of common sense, have related. The circumstances being known, there was simply no room for a separate reason connected, not with the strike, but with the state of mind to which par (l) refers.

[134]

(c) The reason or reasons for the resumption of the investigation of the Bullying Allegations. 72 It was submitted on behalf of the applicants that whether or not they are entitled, on this interlocutory application, to rely on the statutory presumption created by s 809(1), the respondents had failed to negate the existence of a serious question to be tried. In the first place, reference was made to the failure of the Commissioner to go into evidence despite the fact that she had signed the letter of 3 May 2006 instigating the inquiry into the Bullying Allegations and the letter of 8 January 2008 giving notice of its resumption. In the same context, it was pointed out that Cornelius had acted in consultation with the Commissioner and had briefed her at various points about the progress of the investigation and the WorkSafe inquiry as well as the recommendations of the Ombudsman and the OPI. Accordingly, so the argument went, the ultimate decision to resume the investigation of the Bullying Allegations was that of the Commissioner and so her reasons for taking that decision were critical to the question of whether the resumption of the investigation into the Bullying Allegations was for a prohibited reason or for reasons that included a prohibited reason. A parallel was drawn between the absence of evidence from the Commissioner and the absence of evidence from the directors which was discussed by Mason J in General Motors-Holden's Pty Ltd v Bowling (supra). In that case, his Honour observed, at 241-242; 'The suggestion that the respondent's position as a shop steward was not associated with the reason for dismissal in the minds of Mr Rosenboom and Mr Gould is based partly on the assumption that one need not look beyond the consideration which they gave to the matter of dismissal. Yet it is clear enough from the evidence that the effective decision to dismiss the respondent was not made by them in South Australia but by the two directors in Melbourne after they had consultation with Mr Gould, not with Mr Rosenboom. … …

[151]

76 Counsel for the respondents stressed that the briefing note had been addressed to Cornelius and had recommended Option 1 which he had adopted and which had been "signed off" by the Commissioner. The whole history of the investigation by Victoria Police of the Bullying Allegations and, in particular, the matters to which Counsel drew attention, were said to indicate that Cornelius has been intimately involved in the process and has been the effective decision-maker throughout. 77 In submissions in reply, Mr Borenstein SC referred to par 38 of the affidavit of Cornelius which recites; 'As part of our initial goal to approach the investigation in a conciliatory manner, an approach reflected in the letter ultimately sent to the TPA on 3 May 2006 (see below), I had some preliminary contact with the President of the TPA about meeting to discuss the investigation and the allegations and the best way to work together to facilitate the investigation. We had some difficulty over the course of April in arranging a mutually convenient time, and ultimately in late April 2006, the President notified me that she no longer wished to meet regarding the matter.' 78 The "President of the TPA" referred to in that paragraph, I was told, was one of the complainants who had initiated the Bullying Allegations. Nevertheless, Counsel claimed, it was "on her simple say so" that the management of Victoria Police decided to desist from any further attempt to resolve the matter by conciliation. That was said to support the inference that the resumption of an investigation under s 69 or s 71 of the PRA with its ancillary recourse to the coercive powers conferred by s 86Q was for an ulterior and prohibited reason or purpose. 79 It was next argued in reply that the respondents are required positively to negative a prohibited reason for their conduct as it affected Mullett. It is not enough to say that the Ombudsman's report, standing alone, would have provided a non-prohibited reason for the conduct as the decision-makers within Victoria Police were still required to comply with the relevant provisions of the WRA; see Patrick Stevedores v Maritime Union of Australia (supra) at 41 [62]. 80 Applying the test formulated in Municipal Council of Rockdale v Municipal Council of Kogarah and quoted at [69] of these reasons, I am satisfied that, if the evidence remains as it is, the applicants will probably succeed in establishing that the investigation by Victoria Police of the Bullying Allegations against Mullett has been for a prohibited reason or for reasons that included a prohibited reason as described in s 793(1)(a), (j) and (k) of the WRA. 81 The first factor which has led to my attaining that state of satisfaction is the extent to which industrial relations considerations have obtruded themselves at various points when the investigation of the Bullying Allegations arose for action or decision within Victoria Police. That was, perhaps, inevitable given that Mullett, against whom the Bullying Allegations had been made, occupied a central industrial office as Secretary of TPA and had for many years had a high profile as the spokesman and public face of that industrial organisation. In any event, Cornelius acknowledged in his letter of 14 September 2006 to the OPI the "sensitivities which attach to the use of the s 86Q questioning power against a person who is a full time union official." Similarly, one of the arguments noted against the adoption of Option 1 in the briefing paper of 31 December 2007 quoted at [75] above was that "the intent to use 86Q and the investigation itself" would be portrayed by TPA as an interference in union matters and seen as overbearing. As well, the anomaly created by a full time union official and officer of TPA being at the same time a serving police officer was adverted to by the Ombudsman in Recommendation 5 of his report on the investigation of the Bullying Allegations which is reproduced at [34] above. 82 Also capable of being inspired by industrial considerations was the publication on 21 September 2006 to all staff of Victoria Police of the outcome of the initial investigation and the referral to WorkSafe. That statement was simultaneously issued to "the media" and bore the legend that "Media inquiries relating to this issue must be directed to the Victoria Police Media Unit." The explanation that most readily suggests itself for that conduct is that the existence of the investigation was seen as damaging to Mullett in his capacity as Secretary of TPA and therefore as weakening his effectiveness in waging, as it seems on several fronts, an industrial campaign on its behalf. The converse inference is also open that the resumption of the investigation was seen from an employer's perspective as strengthening the hand of the Commissioner in resisting demands by the TPA or improving, in the eyes of the workforce or the general public, her image as a protagonist in an industrial dispute. It may also be that the email of 21 September 2006 was seen as a retaliatory salvo in response to industrial propaganda generated by Mullett and the TPA. 83 I am satisfied on the evidence as it stands that the Commissioner herself was actively involved in various decisions taken between May 2006 and January 2008 in relation to the investigation of the Bullying Allegations. By "signing off" on Cartwright's recommendation of Option 1 in his briefing paper of 31 December 2007 and by signing the letter to TPA of 8 June 2008, the Commissioner gave rise to the strong inference that she had herself considered the consequences of a resumption of the investigation and affirmatively decided that it should occur. That inference has not been rebutted by any direct evidence from her in opposition to the motion for interlocutory relief. Nor has it been attested on information or belief derived from the Commissioner by any other witness that she did not make or influence the decision to resume the investigation or take any relevant action for reasons that included a prohibited reason. If that remains the state of the evidence at trial, it would be open to the Court to infer, applying the rule in Jones v Dunkel (1959) 101 CLR 298, that the Commissioner's evidence would not have assisted the respondents' case. That reasoning commended itself to the majority of the Australian Industrial Court in Bowling v General Motors-Holden's Pty Ltd (1975) 8 ALR 197, at 209 and was approved by the majority of the High Court in General Motors-Holden's Pty Ltd v Bowling (supra), esp at 242. 84 A similar adverse inference is presently available from the respondents' failure, at this stage, to adduce evidence of a convincing explanation of the decision not to attempt to resolve the Bullying Allegations by mediation or conciliation through the Human Resources Department of Victoria Police or otherwise as contemplated by s 86O(2) of the PRA. Nor can the possibility be excluded, on the present state of the evidence, that the resumption of the investigation of the Bullying Allegations was seen as reinforcing or supporting in some way the Commissioner's prohibition on 15 November 2007 of Mullett from entering any police premises unless directed to do so. 85 The involvement of the Commissioner which can presently be presumed for the reasons just indicated was, I consider, partly attributable to the industrial relations implications which the investigation was seen to have by Cornelius, Cartwright and Biggin and perhaps others. It is true that other considerations would also have justified, and may have prompted, the Commissioner's taking decisions or other actions about the investigation. Those considerations included the recommendations of the Ombudsman and the OPI and the duty or discretion to investigate or report cast primarily on the Commissioner by provisions like ss 70, 71 and 86M of the PRA noted at [21] and [24] above. However, it will not avail the respondents to establish at trial merely that those considerations influenced the resumption of the investigation. Because conduct is proscribed by s 792(1) of the WRA if it occurs "for reasons that include a prohibited reason", it will be necessary for the respondents at trial to establish affirmatively that the investigation was not resumed partly for one of the prohibited reasons alleged by the applicants. In making what is necessarily a provisional assessment of the likely outcome at trial, I have had regard, in the manner described at [68]-[71] above, to the reverse onus of proof imposed by s 809(1) of the WRA.

[152]

(ii) Balance of convenience 86 On the balance of convenience which, in the exercise of this discretion, has to be weighed in conjunction with the existence of a serious question to be tried, Mr Borenstein SC suggested that the evidence adduced on behalf of the respondents was at "a high level of generality." It went, he said, to the need for a timely resolution of complaints in the interests of complainants. Nevertheless, the argument continued, the investigation of the complaints was now almost three years old and the need for expedition did not outweigh the interests of the applicants in preserving the subject matter of their litigation in full until trial or judgment. In a related way, it was pointed out that the four persons who, in 2005 and 2006 as members of the Executive of TPA had been pressing for an investigation of the Bullying Allegations against Mullett, were no longer members of that Executive and should have no further apprehension that any conduct of Mullett might be directed against them. In any event, matters of concern within the Executive of TPA had been resolved, partly by the recommendation in June 2007 that the members of the Executive together with Mullett, the Assistant Secretary and Davies should undertake leadership training. A related matter militating against an immediate resumption of the ESD investigation into the Bullying Allegations was the continuing parallel inquiry by WorkSafe. Likewise, Counsel for the applicants pointed to the acknowledgement in a briefing paper of 9 November 2007 by Biggin and Cartwright that "any offences committed on 6 June 2006 are now outside the statute of limitation for laying of charges." In the same passage it was recorded that "Section 69 offences have no statutory limitation." 87 The applicants next sought to meet the suggestion that any further delay in investigating the Bullying Allegations would be compromised by the fading memories of relevant witnesses by instancing the evidence that witness statements had already been provided to WorkSafe for use in its investigation which was still proceeding. With respect to the possibility that relevant witnesses might resign or retire from Victoria Police and so be no longer amenable to the coercive powers conferred by the PRA, it was pointed out that the inapplicability of that Act to members seconded to TPA had been the reason for the reference of the Bullying Allegations to WorkSafe. 88 Finally, it was said that any concern which may be imputed to the persons against whom the Bullying Allegations had been made to be exonerated speedily is answered by the fact that they are all members of TPA which is one of the applicants for the present injunctive relief. It should be assumed, according to this argument, that those members have acquiesced in any delay until the hearing and determination of the action and are content for it to occur. 89 On behalf of the respondents it was argued that, in assessing the balance of convenience, the personal concerns of Mullett have to be weighed against a broad public interest in the continued investigation of the Bullying Allegations which have been alleged to amount to serious misconduct within the meaning of s 86A of the PRA. Mr Parry SC referred to the interests of the complainants and "others who are to be interviewed." It was acknowledged on behalf of the respondents that the amended statement of claim which pleads the causes of action relied on by the applicants in their substantive application runs to some 164 paragraphs, raises a complex series of issues, all of which will be strongly contested and necessitate voluminous discovery of documents. As well, the substantive case was said to be likely to give rise to extensive debates about legal professional privilege, public interest privilege and confidentiality. In those circumstances, it was likely, even if all reasonable steps were taken to expedite it, that a trial of the action would not commence in under twelve months. 90 In submissions in reply directed to the balance of convenience, issue was taken with the suggestion on behalf of the respondents that there were still persons seconded to TPA who had an interest in the investigation and resolution of the complaints which had given rise to the Bullying Allegations. In this context, the applicants relied on the second affidavit of Davies sworn 1 February 2008 where it is deposed at par 18 that the only persons who might possibly have been complainants "are no longer members of the Executive of TPA and no longer come into any regular contact with the Secretary or staff of TPA." 91 In my view, the balance of convenience is against an interlocutory restraint in the terms proposed by the applicant. That would prevent, until the hearing and determination of the action as a whole, the taking through any agency of Victoria Police or the State of Victoria generally, of "any further action with respect to the investigation" of the Bullying Allegations against Mullett. There seems to be no realistic prospect of bringing about a speedy trial by way of a final hearing of the action as presently formulated. Nor has either side evinced any willingness to facilitate the trial of a separate question or issue focused on the resumption of the investigation of the Bullying Allegations. 92 In these circumstances, I consider that an interlocutory injunction restraining for a substantial time any further action with respect to the investigation would unreasonably stultify the investigation. On the other hand, I do not apprehend that significant harm would be caused to the applicants or Mullett if the investigation were to proceed to the extent of completing the taking of statements from persons, other than Mullett, who are perceived as able to provide information relevant to the Bullying Allegations. One of the difficulties which has oppressed me in trying to resolve this interlocutory motion is the absence of specific evidence as to the extent to which statements from relevant witnesses have already been procured, either directly by Biggin and Cartwright on behalf of the ESD, or as a result of the parallel inquiries which WorkSafe has been commissioned to undertake, at times as the sole investigative agency. However, I assume that, apart from interviewing Mullett, little remains to be done by way of completing the inquiry to a point where particulars of a charge, if it is decided to bring one, can be formulated as required by s 72 of the PRA. 93 I note parenthetically that it is the absence of particulars or any other specification of the conduct alleged against him that has caused me, in part, to regard the investigation todate of the Bullying Allegations as capable of exposing Mullett to serious hardship or prejudice. That would particularly be so if he were directed pursuant to s 86Q of the PRA, as seems to be the respondent's present intention, to furnish information or answer questions relevant to the Bullying Allegations. Accordingly, I regard the balance of convenience as requiring only that the respondents be restrained from issuing to Mullett a direction pursuant to that section in relation to the Bullying Allegations. 94 I have come to the conclusion just indicated on the balance of convenience, partly after having regard to the fact that the investigation pursuant to the PRA of the Bullying Allegations is not, of its nature, confined to a decision taken once and for all. On the contrary, it is open to the Commissioner, or a delegate duly authorised by her who is unacquainted with the history and industrial implications recounted above, to take fresh decisions in relation to the investigation which could be shown not to have been influenced by any of the prohibited reasons enumerated in s 793(1)(a), (j) and (k) of the WRA. I have also assumed that the rules of natural justice have not been excluded in relation to the inquiry into, and determination of, a charge for which s 73 of the PRA provides. On that assumption, if an inquiry and determination of a charge against Mullett, properly particularised, occurs without a prior direction to him pursuant to s 86Q, he will have available to him in the Victorian courts the full range of remedies necessary to protect him from a denial of procedural fairness. 95 In case one or other of the assumptions made earlier in this part of these reasons should prove unfounded or some other unforeseen circumstance should arise which is capable of causing hardship or injustice to one side or the other, I shall reserve liberty to apply.

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Judgment (156 paragraphs)

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Cases Cited (19)