Dear Colleagues;

A recent example from the Full Court of the Supreme Court of SA of the operation of the tort of Breach of Statutory Duty (apologies to Canadian colleagues to whom this won’t be relevant.) In MORGAN v WORKCOVER CORPORATION [2013] SASCFC 139 (19 December 2013) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASCFC/2013/139.html a member of the public had reported what she said was corrupt or inappropriate behaviour by WorkCover officers. The Whistleblowers Protection Act 1993 (SA) contains provisions designed to protect parties who make such disclosures, including s 7 which imposes what it explicitly calls an “obligation of confidentiality” on the recipient of such information not to disclose the identity of the “whistleblower" to the person who is accused unless it is necessary to do so to investigate (see para [60] for the provision). Contrary to s 7 WorkCover informed the objects of the complaints of Ms Morgan’s disclosures, and she was then sued for defamation.

There was an action for equitable breach of confidence, but the Full Court also explored the availability of the BSD action and in a brief but persuasive discussion at [67]-[70] held that there was an implied civil tort action created by s 7. One argument made in opposition by WorkCover was that another provision of the Act, s 9, explicitly gave a civil action “as a tort” to someone who was victimised (subject to some sort of workplace detriment) as a result of their disclosures. Section 7 was not so explicit. But the court, correctly in my view, held that s 7 was dealing with a different issue and there was no reason to deny a civil action for breach (especially since there was no criminal penalty attached to breach of s 7).

Regards

Neil