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The Federal Court dismissed a judicial review of a PSDPA refusal to investigate, holding the decision was procedurally fair, reasonable, and based on personal employment matters.
The Federal Court of Appeal dismissed the judicial review, finding the Tribunal's key factual and credibility findings were entitled to deference and were not tainted by the legal questions raised; the Court declined to decide the broader legal issues and emphasized the Tribunal exceeded its need to decide the case by extensive legal analysis, contrary to the expedition requirement.
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There was no denial of procedural fairness because the applicant had adequate notice that the Commissioner might rely on the availability of another recourse (through the disclosure form, the earlier decision referencing s.24(1)(f), and the opportunity to provide further information), and procedural fairness at the investigatory threshold is limited given the informality and discretion conferred by the Act; accordingly the appeal is dismissed.
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The Federal Court dismissed a judicial review of the PSIC’s refusal to investigate parts of a reprisal complaint, finding the threshold process fair and the decision reasonable.
The appeal is allowed because the DPSIC unreasonably concluded, on a cursory review, that the April 2009 emails could not constitute an internal protected disclosure under s.12; it was not plain and obvious that the complaint was beyond the Commissioner’s jurisdiction, and therefore the reprisal complaint is declared admissible and must be referred back to a new commissioner for further handling under the Act.
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The payment was a mixed-purpose settlement. The court found $45,000 of the $160,000 was paid in respect of loss of employment and therefore constituted a retiring allowance, and $115,000 related to the tortious misrepresentation and UK PIDA whistleblower claims and was not a retiring allowance. The court applied the Forest approach to apportionment and inferred allocation from surrounding facts and mitigation of loss.
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