Tomasevic v State of Victoria [2012] VSC 148

PRACTICE AND PROCEDURE - Summary judgment - No real prospect of success on issue - Not altered by evidence at trial - Civil Procedure Act 2010, s 62.

1 This is an appeal by the defendant, the State of Victoria, by notice dated 14 March 2012 against the order of Randall AsJ made on 8 March 2012 dismissing its application to strike out paragraphs 11 to 16 of the plaintiff's amended statement of claim.

2 By a proceeding commenced in March 2010 but not served until March 2011, the plaintiff sued the defendant as his employer in its "Department of Education and Training" for damages for injuries suffered by him in the course of his employment as a result of the negligence or breach of duty of the defendant. Paragraphs 11 to 16 of the amended statement of claim advanced a further claim for damages pursuant to s 19(1), and exemplary damages pursuant to s 19(3), for breach of s 18 of the Whistleblowers Protection Act 2001 ("Whistleblowers Act").

3 The relevant provisions of the Whistleblowers Act did not come into operation until 1 January 2002. In paragraph 11 of the amended statement of claim it was alleged that "from 1999 onwards the plaintiff made complaints constituting protected disclosures" within the meaning of the Whistleblowers Act. Not surprisingly, further and better particulars were sought of this vague allegation. Further and better particulars were provided in a document dated 24 November 2011 following an earlier briefer version dated 7 June 2011. The complaints by the plaintiff constituting protected disclosures were said to "include" various disclosures including certain disclosures "during and from 2000". However, 20 of the listed 22 written disclosures or categories of disclosures were dated in 2000 or 2001. The date or dates of the remaining two categories of written disclosures were not given. Nor were the dates of the various oral disclosures which, in addition, suffered from the same defect as the written disclosures, namely that the plaintiff, having used the word "include", was only giving particulars of some not all of the alleged disclosures.

4 The defendant's counsel understood that, at the hearing before the Associate Judge, it was conceded by the plaintiff's then senior counsel that the plaintiff did not allege that any relevant disclosures were made on or after 1 January 2002. However, that alleged concession was disputed and in any event it is not now the plaintiff's position. The potential dilemma was alleviated by the defendant filing on 28 March 2012 an amended summons seeking in the alternative to the striking out of paragraphs 11 to 16 the following order:

Further or alternatively, to the extent that the plaintiff's statement of claim seeks to rely on any alleged "protected disclosure" made prior to 1 January 2002, such pleading discloses no cause of action and is struck out.

5 Section 18(1) of the Whistleblowers Act made it an offence for a person to take "detrimental action against a person in reprisal for a protected disclosure". Protected disclosure is defined in s 12 to mean "a disclosure made in accordance with Part 2".

6 Counsel for the defendant submitted that it was clear from a reading of the sections contained in Part 2 that "protected disclosures" could not have occurred before 1 January 2002. Emphasis was placed on the features of a "protected disclosure" set out in the Whistleblowers Act. Thus, s 5 provided that a natural person who "believes on reasonable grounds" that a "public officer" or "public body"

(a) has engaged, is engaging or proposes to engage in "improper conduct" or

(b) has taken, is taking or proposes to take "detrimental action in contravention of section 18"

may disclose that "improper conduct" or "detrimental action" "in accordance with this Part". Relevantly, the disclosure may, according to s 6(1), be made to the "Ombudsman" or a "public body". Pursuant to s 6(6)(a), it may be made orally or in writing and (b) "must be made in accordance with the prescribed procedure". Finally, pursuant to s 9, the disclosure may be made about past conduct, that is "conduct that has occurred before the commencement of this section".

7 Counsel for the defendant submitted that many of the terms used in the above description of the features of a protected disclosure were defined terms in s 3 of the Whistleblowers Act.

8 Counsel for the plaintiff submitted that the Whistleblowers Act allowed a disclosure made before 1 January 2002 to be a "protected disclosure" if it satisfied the features set out in the legislation. It was submitted that the phrase "in accordance with Part 2" simply meant in harmony with or conformity with Part 2, and reference was made to the definition of the word "accordance" in the Shorter Oxford English Dictionary. Counsel contrasted the phrase "in accordance with" with the requirement that something be done "under the Act". It was further submitted that the use of defined terms did not mean that the plaintiff could not seek to prove that his disclosures prior to 1 January 2002 met the requirements of a protected disclosure within the meaning of the Whistleblowers Act. Counsel also pointed out that, according to s 1 of the Whistleblowers Act, its purposes were to encourage disclosures of improper conduct and to provide protection for persons who make those disclosures.

9 It is well established law that in the absence of a clear statement to the contrary, an Act will be assumed not to apply to events that have already occurred.[1] However, this principle does not operate where the Act merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future.[2]

10 Thus, s 9 of the Whistleblowers Act provides that a disclosure about conduct occurring before 1 January 2002 may be a disclosure under Part 2. But what the Act does not say is whether or not a disclosure made before that Act commenced operation can be a protected disclosure.

11 In my opinion, there are a number of indications from the Act itself that it should not be read as treating past disclosures as protected disclosures.

12 First, as provided in s 12, a protected disclosure must be a disclosure "made in accordance with Part 2". In my opinion, Garner's A Dictionary of Modern Legal Usage, best captures what is meant by the phrase "in accordance with". Garner says that:

To be in accordance is to be in conformity or compliance.

In my opinion, one cannot be in compliance with a Part of an Act if that Act is yet to be passed. It therefore seems to me that the defendant was correct in submitting that the phrase "in accordance with Part 2" is interchangeable with the phrase "under Part 2".

13 Secondly, the two phrases are used interchangeably in Part 2 itself. According to s 5, a disclosure may be made "in accordance with this Part". Yet ss 6, 7, 8 and 9 all refer to a disclosure "under this Part".

14 Thirdly, s 5(b) refers to a detrimental action "in contravention of section 18". But that could not occur until the Whistleblowers Act came into operation. In my opinion, the same construction should be applied to s 5(a). I do not accept the plaintiff's submission that s 5(a) can be read in one sense and s 5(b) in another.

15 Fourthly, s 6(6)(b) provides that a disclosure must be made in accordance with "the prescribed procedure". In my opinion, that requirement cannot be met until there is a prescribed procedure laid down under the regulation making power contained in s 112. The Whistleblowers Protection Regulations 2001 also came into operation on 1 January 2002. The prescribed procedures are simple, if not self evident. (See, for example, the procedure for disclosure to public bodies under regulation 8). Nevertheless, I do not accept that an earlier disclosure, that is one made before 1 January 2002, can be said to be in accordance with the prescribed procedure simply because it met the requirements of an oral or written disclosure under regulation 8.

16 There remains the question of whether the defendant's construction of the Whistleblowers Act, which I believe is the correct one, should be acted upon at this stage. The particular dispute between the parties is a purely legal one. No evidence which could be led at the trial will alter the construction of the Whistleblowers Act. In those circumstances, I consider that it is appropriate to state my conclusion that the plaintiff's claim that disclosures by him prior to 1 January 2002 are protected disclosures within the meaning of the Whistleblowers Act has "no real prospect of success" under s 62 of the Civil Procedure Act 2010 ("the CPA"), and to rule accordingly. Not to do so would not, in my opinion, be conducive to satisfying an overarching purpose of the CPA, namely "to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute" (s 1(1)(c)). In this regard I refer to the following passage from the judgment of Latham CJ in Dey v Victorian Railways Commissioners,[3] where his Honour said:

If, as a result of argument, the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense.

17 Here, of course, only part of the claim is involved.

18 That passage from the Chief Justice's judgment was specifically approved in the Court of Appeal decision of Camberfield Pty Ltd v Klapanis[4] by a court consisting of President Winneke, Batt JA and DoddsStreeton AJA.

19 I will therefore order that the appeal should be allowed and that the order of Randall AsJ be set aside. I will hear from the parties on the precise form of the striking out order I should make and on the question of costs. The striking out order I would propose making is that paragraphs 11 to 16 of the amended statement of claim and the further and better particulars of paragraph 11 be struck out, with leave to the plaintiff to replead the claim giving full and precise particulars of any protected disclosures made on or after 1 January 2002.

[1] See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).

[2] See Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, 824 (Winneke CJ, Gowans and Starke JJ); In r_e a Solicitor's clerk_ [1957] 1 WLR 1219, 1222 (Lord Goddard CJ with whom Barry and Havers JJ agreed).

[3] [1949] HCA 1; (1949) 78 CLR 62, 85.

[4] [2004] VSCA 104.