Turner v Commonwealth of Australia

LOGAN J: 1 Following service as a general service officer in the Royal Australian Navy, Mr Bradley James Turner became a member of the Australian Federal Police (AFP). In the course of his duties with the AFP, Mr Bradley Turner came to be deployed to Papua New Guinea in November 2013 as an advisor to the Royal Papua New Guinea Constabulary (RPNGC) as part of an AFP operation known as Operation Copperplate. He was based in Lae, although his duties took him into the countryside. The purpose of his deployment was to provide advice and support to community policing by the RPNGC in Papua New Guinea. He was unarmed in the course of his duties. 2 On 22 December 2016, Mr Bradley Turner filed an application in this Court which he claimed compensation, injunctive and other relief against the Commonwealth pursuant to the Public Interest Disclosure Act 2013 (Cth) (the PID Act). The basis of his claim was that he had suffered reprisals as a result of his reporting particular alleged experiences and observations whilst undertaking his overseas duty in Papua New Guinea concerning actions of the RPNGC and also of certain superior officers of the AFP also deployed to Papua New Guinea. 3 Section 13 of the PID Act defines what constitutes taking a reprisal: What constitutes taking a reprisal (1) A person (the first person) takes a reprisal against another person (the second person) if: (a) the first person causes (by act or omission) any detriment to the second person; and (b) when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure; and (c) that belief or suspicion is the reason, or part of the reason, for the act or omission. (2) Detriment includes any disadvantage, including (without limitation) any of the following: (a) dismissal of an employee; (b) injury of an employee in his or her employment; (c) alteration of an employee's position to his or her detriment; (d) discrimination between an employee and other employees of the same employer. (3) Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment. (emphasis in original) 4 Jurisdiction to award compensation is conferred on this Court by s 14 in relation to proved reprisals. Jurisdiction to grant injunctive relief and also the ordering of apologies and other orders is given by s 15 of the PID Act. There is also power conferred by s 16 to order reinstatement. Details of the alleged experiences and observations, as well as alleged reprisals, are set out in Mr Bradley Turner's statement of claim as it has come to be amended. The Commonwealth's defence puts in issue the existence of particular experiences and observations, the taking of any reprisals, and, also, the nature and extent, even if liability were proved, of any compensation. 5 The medical and psychological evidence placed before the Court establishes that, unfortunately but undoubtedly, Mr Bradley Turner is presently suffering from a severe form of post-traumatic stress disorder. That evidence attributes his medical condition to at least have been contributed to, if not caused by, his service in Papua New Guinea as a member of the AFP. More particularly, the evidence establishes that Mr Bradley Turner is in no position at all presently to give oral evidence or to give rational instructions in respect of the present proceedings. That is not to say that his inabilities are general. The evidence is that they are very much associated with the particular stress occasioned to him by the present litigation. 6 That particular disability moved the Queensland Civil and Administrative Tribunal (QCAT), on 31 January 2019, to make an order appointing Mr Bradley Turner's father, Mr Barry Warren Turner, as his legal administrator. The order of QCAT is in the following terms: ADMINISTRATION 1. Barry Warren Turner is appointed administrator for Bradley James Turner for the following financial matters only: (a) legal matters relating to Bradley James Turner's financial or property matters. 2. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing 3. This administration appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. Though not specified on the face of the order, it is inferentially likely that the order was made pursuant to the Guardianship and Administration Act 2000 (Qld). 7 Mr Barry Turner has agreed in writing and consented to act as the litigation representative of his son, Mr Bradley Turner for the purpose of these proceedings. As it happens, and quite apart from the healthy and loving relationship with Mr Bradley Turner to which Mr Barry Turner deposes, he is uniquely well-qualified, in my view, to undertake the role of litigation representative. That is because Mr Barry Turner is a retired member of the AFP. He served in the AFP for 30 years, obtaining the senior commissioned rank of Commander in the AFP prior to retiring. In the exercise of his role, as appointed by QCAT, Mr Barry Turner has, on advice, signed a "Release and Discharge" with a representative of the Commonwealth by which, subject to sanction, it is sought to compromise these proceedings. The "Release and Discharge" has become Exhibit 1 and has been marked in the usual way as a confidential exhibit. 8 The application today is twofold: first, for Mr Barry Turner's appointment as litigation representative, and, second, pursuant to r 9.70, for the sanctioning of the compromise as found in Exhibit 1. 9 Given that there has already been an appointment by QCAT of Mr Barry Turner, it seemed to me unnecessary that notice of the application for his father's appointment as litigation representative should be served on Mr Bradley Turner. The whole purpose of the application made to QCAT was to secure an appointment which would, in turn, become the subject of an application for Mr Barry Turner's appointment in these proceedings under the Federal Court Rules 2011 (Cth) (Rules). It was for those reasons that, on 20 February 2019 by interlocutory order, I dispensed with a need for service of the application for Mr Barry Turner's appointment on Mr Bradley Turner. 10 For reasons which I have already given, it is apt to appoint Mr Barry Turner litigation representative, so the question now becomes whether to sanction the compromise as found in Exhibit 1. For that purpose, and apart from the medical and psychological evidence, an opinion of counsel has been tendered on a confidential basis for the Court's consideration. The tendering of such an opinion accords with very long-standing practice indeed in relation to applications for the sanctioning by a judge of a compromise in respect of a person under a legal disability. 11 In In re Birchall; Wilson v Birchall (1880) 16 Ch D 41 (In re Birchall) at 43, Lord Jessel MR, stated: The practice followed by myself, and by Lord Romilly before me, at the Rolls, has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so. If the opinion given is only that of the junior counsel and there is a leader, I ask the leader in Court whether he agrees with the junior's opinion and this was also Lord Romilly's practice. 12 That particular practice in In re Birchall has long been the practice, unsurprisingly, in the State Courts of Queensland: see Madden v Haugh [1969] QWN 7 (Madden v Haugh), where In re Birchall is cited with approval by W.B. Campbell J (as the Chief Justice then was); and Fowler v Gray [1982] Qd R 334 (by Master Lee QC as his Honour then was), where there is extensive discussion of the local practice. 13 At first blush, it might be thought that there is some idiosyncratic gloss added to this long-standing practice by the reference in r 9.71 of this Court's Rules to an "independent lawyer". It might be thought that the opinion of counsel with a long-standing retainer in respect of the litigation is not, for some reason, regarded in the practice of this Court, unlike that to which I have referred, sufficient. That is not, though, the way in which the reference in r 9.71 to an "independent lawyer" has been construed. There is a line of authority commencing with a judgment of Bromberg J in Wade v State of Victoria (Department of Education and Training) (No 2) [2012] FCA 1080 at [6] - [9], running through Koenders v State of Victoria (Department of Education and Training) [2016] FCA 842 where Davies J collects a number of other original jurisdiction authorities, to Young v State of Victoria (Department of Education and Training) [2018] FCA 1124 (Young v State of Victoria) in which, at [11] and [12], Bromberg J summarises the practice as his Honour understands it: 11. It is the Court's responsibility to determine, for itself, whether the settlement is beneficial to the interests of the person under the disability: Scandolera v Victoria (Department of Education and Early Childhood Development) (2015) 331 ALR 525 ("Scandolera") at [26]-[27] (Mortimer J). In this determination, the Court should be concerned only with the benefit of the applicant: Gillespie v Alperstein [1964] VR 749 (Gillard J); Modra v State of Victoria (Department of Human Services Victoria) [2013] FCA 1041 ("Modra") at [12] (Tracey J). 12. This task requires that I weight the benefits to the applicant under the settlement against what he may secure at trial. I must also weight into the balance the vicissitudes of litigation and the advantages to a litigant of securing, through a settlement, a reasonable compromise which might avoid the financial burdens and potential risks of litigation, as well as the pressure upon an applicant and his or her family that the litigation will likely entail. There are both tangible and intangible benefits to an applicant in arriving at a reasonable compromise of his or her proceeding and those matters need to be taken into account when the Court assesses whether a settlement is beneficial to the interests of the applicant. As I stated in Wade v State of Victoria (No 2) [2012] FCA 1080 ("Wade") at [6], the task faced by the Court will usually be difficult and heavily reliant upon the opinion provided by an independent lawyer as required by r 9.71(2)(c) of the Rules. For this reason, as Megarry J observed in Re Barbour's Settlement; National Westminster Bank Ltd v Barbour [1974] 1 All ER 1188 at 1191, as cited by Tracey J in Modra at [12], "[e]xpressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned". 14 Suffice it to say, the practice as recited by Bromberg J in Young v State of Victoria exactly reflects the practice to which Campbell J refers in Madden v Haugh. I respectfully agree with the observations made by Bromberg J in Young v State of Victoria and the consistent practice followed by other judges in relation to what constitutes an opinion of an "independent lawyer". 15 In this case, the opinion has been furnished by Mr Brown. Mr Brown, to my direct observation as case management judge in respect of this litigation, has had a close, concerned and, indeed, with respect, sympathetic involvement with the litigation since its inception. I say "sympathetic" because it has been quite obvious to me that Mr Brown has taken not just a clinical forensic interest in the discharge of his duties as counsel, but has also been very sensitive to Mr Bradley Turner's personal circumstances. I understand now, as a result of the medical and psychological evidence, exactly the nature of that sensitivity which has been displayed by counsel. 16 Mr Brown's opinion is succinct, but none the worse for that. It has been particularly informed by extensive discovery and resultant inspection of documents both paper and electronic, which occurred pursuant to a court order. Indeed, the formulation of orders for particular discovery and their compliance was the subject of quite some angst at interlocutory stages of the proceedings. That necessitated, as it transpired, an adjournment of an earlier trial. The present application has been brought early in a fresh trial period. The case has been set down for a trial over a three-week period. 17 Mr Brown's considered opinion is that the compromise, as found in Exhibit 1, is a reasonable path for Mr Bradley Turner to take in these proceedings. Given the nature of the allegations found in the statement of claim, it would be necessary, in deciding whether those allegations were proved, to take into account and apply s 140 of the Evidence Act 1995 (Cth) (Evidence Act). More particularly, given the nature of allegations made in relation to the conduct of particular senior AFP officers, it would be necessary to take account of s 140(2) of the Evidence Act and observations notably made in relation to the proof of grave allegations in civil proceedings by Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. 18 In deciding whether or not to sanction a compromise, a judge is required to examine where best the interests of the person under a legal disability lie. In weighing up whether a compromise is in reasonable, a judge must bring his or her experience of litigation and its uncertainties to that task. Included in that is experience of life. That is not to say that a judge must in any way try a case for the purpose of sanctioning a compromise. 19 It is a matter of public record that I additionally hold a commission as a judge of the Supreme and National Courts of Papua New Guinea. So I take something of an interest in current affairs and history in relation to Papua New Guinea. I also see the one-off cases that come on appeal on the civil side in the Supreme Court. But such matters are not evidence. At most, they might form part of an experience of litigation. 20 Even putting aside matters such as that, which are not evidence, Mr Bradley Turner's claims do not strike me as inherently implausible. His diagnosed post-traumatic stress disorder condition and its apparent cause or, at least, contributing factor is influential in relation to that statement. But there is a very long path, indeed, between something which is not inherently implausible and that which is able to be proved, having regard to s 140 of the Evidence Act. 21 The realities of that task of discharging an onus of proof are very much canvassed, albeit succinctly, in Mr Brown's opinion. Much lies behind that opinion in terms of an analysis of the discovered documents. In addition, Mr Bradley Turner's condition is such that his ability to give any oral evidence if required for cross-examination, as he would inevitably have to be, is, to say the least, conjectural. All of this has informed counsel's considered view that the compromise is reasonable. 22 There is not, in terms, an affidavit from the solicitor in relation to the reasonableness of the compromise, but, inferentially, the solicitors here are informed by counsel. Further, there is evidence of the involvement of the solicitors in relation to the negotiating of the compromise. So I do not regard it as preventing sanctioning that there has been no affidavit by the solicitor. It is, though, desirable that such applications in the ordinary course by accompanied by such an affidavit. 23 A question which did arise in the course of the hearing was exactly what, if any, would be left to Mr Bradley Turner net of costs, were I to sanction the compromise. Such a consideration arose in the Queensland State jurisdiction in Nicotra v State of Queensland [2018] 3 Qd R 219. In that case, at [50] - [51], Burns J stated: 50. It follows that, in order for the court to determine whether a compromise is reasonable and for the benefit of the person under a legal disability, evidence should be placed before it as to the amount likely to comprise the applicant's estate after the various external calls on the compromise sum (including statutory charges, management fees, costs and payments out for past expenses and care) have been paid. Although it may be undesirable for costs to be agreed before a compromise is sanctioned because that might give rise to a conflict of interest (between the applicant and his or her solicitors) and would, in any event, be tantamount to placing the court in the position of cost assessor so far as that component of the compromise is concerned, a reliable estimate of the indemnity and standard costs should be advanced. It is only in that way that the estimated differential, being a sum that will go in reduction of the applicant's estate, may be ascertained. 51. There may well be cases where the likely differential is so significant that the reasonableness of the compromise is affected. As it turns out, for the reasons later discussed … this is not such a case. That, of course, is not to say that the likely differential is insignificant; only that it is not such as to affect the reasonableness of the compromise. However, simply because the compromise is reasonable and for the benefit of the applicant does not mean that the court is free to ignore the possibility that what is left to the applicant may be impermissibly eroded by legal fees that have not been reasonably incurred or which are not of a reasonable amount. [footnotes omitted] 24 It is, in my view, necessary, in relation to the sanction of a compromise where part of the sum concerned - or perhaps even all of it - will be deployed in the meeting of costs as between solicitor and client, for the court to have evidence before it as to the net sum that will be left to an applicant, if any, and evidence as to, or at least a foundation for, an inference that the sum allowed in respect of costs as between solicitor and client is reasonable. 25 While the terms of this compromise are confidential to the parties, the effect of it, if sanctioned, is that Mr Bradley Turner will not be left with any liability at all to his solicitors in respect of costs as between solicitor and client. So much as established now on the evidence. Equally though, the evidence establishes that he will not be left with a net sum for his own particular use. In the ordinary course, in my view, a court ought to have evidence of a breakdown of costs as between solicitor and client, including outlays and an opinion as to their reasonableness. Nonetheless, the overall opinion of counsel is that the compromise is reasonable. 26 Further, in this case, by virtue of my case management responsibilities, as well as my general experience of litigation both before and after appointment to the court, I have no doubt at all that the sum for which provision is made in Exhibit 1 is reasonable, even as regards as costs to be paid as between solicitor and client. To reach the point which has been reached whereby an opinion as to prospects could be furnished, it was necessary for there to be not just the usual taking of instructions from Mr Bradley Turner and preparation of his own evidence, but also a very thorough and responsible investigation of documents discovered, to say nothing of securing that discovery. Necessarily, that task is time consuming. 27 Even taking into account that Mr Bradley Turner has the benefit of an interlocutory order in respect of costs thrown away by the adjournment of the earlier trial, I have no doubt that the costs provision is reasonable. In the particular and peculiar circumstances of the present case, it seems to me an unnecessary burden and one productive of the incurring of further costs to require any further evidence in relation to the reasonableness of the costs. 28 I have also taken into account, in assessing the weight to give counsel's opinion, questions as to quantum, as has been highlighted in submissions on behalf of the Commonwealth who, naturally, didn't have the benefit of access to the applicant's counsel's opinion. What might be recovered, even if liability were established, having regard to subsisting provision for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of Mr Bradley Turner's post-traumatic stress disorder is very moot indeed. 29 It is at least likely that, from any compensatory sum which may come to be ordered, were the proceedings to continue, Mr Bradley Turner would be obliged to make a refund to Comcare pursuant to s 48 of the SRC Act. His present compensation extends beyond the meeting of medical expenses to the provision of incapacity payment compensation. In my view, that point on behalf of the Commonwealth is well made and it is a factor I take into account in conjunction with counsel's opinion in forming the view that the compromise in Exhibit 1 is reasonable. 30 There are also other undertakings which have been given as part of the compromise on behalf of the Commonwealth by the AFP to Mr Bradley Turner. I do not consider it appropriate to make detailed reference to these, but agree with the opinion voiced by counsel that these, in themselves, are valuable. Particularly that is so, in my view, having regard to Mr Bradley Turner's post-traumatic stress disorder condition. 31 Further, and this is a point well made by counsel and no secret, the compromise of the present proceeding is inherently likely to have beneficial effects in terms of Mr Bradley Turner's health. In short, it will bring closure of a major stressor and do so on terms which are regarded as reasonable. It needs to be remembered, in relation to these proceedings, that in the event that Mr Bradley Turner were unable to prove the case as to liability that the Commonwealth would be perfectly entitled to seek an order for costs against him. In that circumstance, it would not follow that costs would follow the event (s 18, PID Act) but a costs order, if made, would be ruinous. 32 It only comes to this: I regard the compromise as found in Exhibit 1 as reasonable and one which ought to be sanctioned by the Court. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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