Anthony Albert Twining v Jacqueline Anne Curtis
[2013] ACTSC 149
•8 August 2013
ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS
[2013] ACTSC 149 (8 August 2013)
TORT – INJURIOUS FALSEHOOD – elements of tort – statements made in context of employment – whether statement false – whether statement malicious – whether statement caused actual damage
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Bradley v Wu [2013] ACTSC 67
Clavel v Savage [2013] NSWSC 775
Dye v Commonwealth Securities Ltd [2012] FCA 242
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Twining v Curtis [2010] ACTSC 115
Wilkinson v Downton [1897] 2 QB 57
No. SC 178 of 2007
Judge: Master Mossop
Supreme Court of the ACT
Date: 8 August 2013
IN THE SUPREME COURT OF THE )
) No. SC 178 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ANTHONY ALBERT TWINING
Plaintiff
AND:JACQUELINE ANNE CURTIS
Defendant
ORDER
Judge: Master Mossop
Date: 8 August 2013
Place: Canberra
THE COURT ORDERS THAT:
There is judgment for the defendant with costs.
These proceedings involve an action for damages based on the tort of injurious falsehood. The plaintiff claims that on three identified dates in 2004 the defendant maliciously published statements about the plaintiff that were false. The plaintiff claims that the conduct has injured his pecuniary interests and alleges that he has suffered actual pecuniary loss. As a consequence of a direction of the Court, the plaintiff provided a schedule which indicates that his claim for past loss up to 31 December 2012 is $505,448. He also makes a claim for future damages. The damages are said to arise from his inability to obtain paid employment as a consequence of the publication of the three statements.
The plaintiff was employed by the Australian Public Service Commission between 7 June 2004 and 5 November 2004. He was employed as an ongoing employee and paid at the APS 4 level. His employment was subject to a probation condition. Ultimately, his employment was terminated as a consequence of what occurred during his period of probation. The defendant was employed by the Commission in the position of Director of Human Resources and head of the Strategic Human Resources and Communications Branch within the Corporate Services and Support Group.
The three statements which are said to amount to injurious falsehood are as follows.
a) It is alleged that on or about 16 June 2004 the defendant said to Christine Flynn, the head of the Leadership, Learning and Development Group to whom the plaintiff was the executive assistant, that the plaintiff had “commented inappropriately” in discussing the circumstances of his engagement by the Commission with another employee, Joanne Zappia, and that Ms Zappia “could have appealed” the plaintiff’s engagement or words to that effect.
b) On 20 September 2004 it is alleged that the defendant said to Ms Flynn, in the plaintiff’s presence, that Ms Zappia “could have appealed” the plaintiff’s engagement.
c) It is alleged that on 20 October 2004 the defendant said to Ross Davidson, who was by that time the plaintiff’s “line manager” that “Tony Twining has a track record for writing complaints without actually bringing the concern to the attention of the other party” or words to that effect. In the alternative, it is alleged that those words were said to Ms Flynn who then repeated the words to Mr Davidson.
Each of these statements is alleged to be false and each is alleged to have been made maliciously.
It is alleged that the statement on 16 June 2004 to Ms Flynn caused Ms Flynn to fear the plaintiff, to despise him, to treat him with contempt and to cease dealing equitably with him. It is also alleged that as a consequence of the statement the plaintiff was deprived of a reference from Ms Flynn upon ceasing employment with the Commission and that this prevented the plaintiff from obtaining further employment after 5 November 2004.
There are no particular consequences pleaded in relation to the statement alleged to have been made to Ms Flynn on 20 September 2004.
In relation to the statement alleged to have been made by the defendant on 20 October 2004 to Mr Davidson or to Ms Flynn the chain of causation alleged is as follows. It is alleged that the statement lowered the plaintiff in Mr Davidson’s estimation and caused Mr Davidson to despise the plaintiff and treat him with contempt. It is alleged that it also caused him to cease dealing equitably with the plaintiff. It is then alleged that the impugned statement was conveyed to the plaintiff’s immediate supervisors, Belinda Kevan and Caroline Chase and that that caused them to fear the plaintiff, despise him, to treat him with contempt and to cease dealing equitably with him. It is alleged that the statement caused Mr Davidson to recommend to the delegate of the Commissioner, Michael Jones, that the plaintiff’s employment be terminated and that the plaintiff was in fact terminated. It is then alleged that the conduct deprived the plaintiff of references from Mr Davidson, Ms Kevan and Ms Chase and that as a consequence the plaintiff was prevented from obtaining further employment after 5 November 2004.
I note at this point that, as pleaded, the critical causal link between the conduct alleged and pecuniary loss on the plaintiff’s part is that it deprived him of references and that the absence of those references led to him being unable to obtain employment from November 2004 until today and into the future.
The elements of the cause of action of the tort of injurious falsehood are explained in the reasons in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388. The various judgments in that case establish that the cause of action requires:
(1) a false statement of or concerning the plaintiff’s business or property;
(2) publication of that statement by the defendant to a third person;
(3) malice on the part of the defendant; and
(4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
See: (2001) 208 CLR 388 at [1] (Gleeson CJ), [52], [57]-[60] (Gummow J), [114] (Kirby J), [154] (Hayne J), [192] (Callinan J).
The elements of the tort were discussed in this Court in Bradley v Wu [2013] ACTSC 67 as well as in an earlier interlocutory decision in the present case: Twining v Curtis [2010] ACTSC 115.
For the purposes of the present case it is not necessary in my view to embark upon any consideration of the precise scope of the tort and, in particular, how far it extends beyond statements relating to a person’s business or property. This was discussed by Gleeson CJ in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 693 and left open by the decision of the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons. In Dye v Commonwealth Securities Ltd [2012] FCA 242 Buchanan J was not prepared to extend the scope of the tort to include claims by a relatively junior employee within a large organisation because no property, commercial or business interest of the kind necessary was established. Having regard to my conclusions it is not necessary to attempt to resolve this issue in the present case. I proceed on the assumption that is most favourable to the plaintiff, namely, that the tort is wide enough to accommodate a damaging falsehood which interferes with the interests of the plaintiff in being able to maintain or obtain employment.
Facts
By letter dated 1 June 2004, Ann Martin of the Australian Public Service Commission (APSC), wrote to the plaintiff enclosing a Notice of Engagement document signed by Ms Flynn, delegate of the Public Service Commissioner, appointing the plaintiff to a non-ongoing position with a commencement date of 31 May 2004 and a termination date of 6 June 2004. On 2 June 2004, Ms Martin wrote to the plaintiff enclosing a Notice of Engagement document signed by Ms Flynn, delegate of the Public Service Commissioner, dated 2 June 2004, appointing the Plaintiff to an ongoing position (subject to a period of probation) with a commencement date of 7 June 2004. The dates on which the documents were signed involve some inconsistencies and the evidence did not disclose precisely why this course was followed. However the plaintiff signed the ongoing appointment on 3 June 2004 and commenced, consistently with the documentation, on 7 June 2004. The ongoing appointment was subject to a period of probation of three months with a possible total maximum period of six months.
The plaintiff was engaged as Executive Assistant to Ms Flynn, then Group Manager of the Leadership, Learning & Development Group. This was one of six groups within the APSC, another being the Corporate Services Group in which the defendant worked.
Shortly after the plaintiff commenced he booked his car in for service at a mechanics in Queanbeyan on 16 June. Given the difficulty getting from Queanbeyan to work without a car he asked around within the Leadership, Learning and Development Group to see if there was anyone who lived in Queanbeyan who could give him a lift from the mechanics to work and back. He was told that another employee, Joanne Zappia, also lived in Queanbeyan and arranged with her to get a lift to work. During the course of getting a lift to work Ms Zappia asked the plaintiff how he got the job as Ms Flynn’s executive assistant. His evidence was that he said “Oh, I just walked in” and explained that because he had worked as an executive assistant in three other agencies and had some 12 years of experience in the Australian Public Service, good referees and a “highly protected” security clearance, he was not surprised.
Ms Zappia’s evidence in her witness statement as to that conversation was that the plaintiff said that it wasn’t hard for him to get a job in the public service and “I didn’t even have to go for an interview”. In her oral evidence her recollection was not quite so clear and she could only recall that the plaintiff gave the impression that it was quite easy to get a job. Later on 16 June 2004 she saw either her direct supervisor, Ann Martin, or the defendant and said words to the effect “I came into work with Tony this morning and he mentioned it was easy to get a job in the public service. He said he didn’t have to attend an interview.”
The defendant recalled speaking to Ms Flynn but couldn’t recall any specific details. She could recall that she was aware that Ms Flynn was relatively new to the Australian Public Service and said that any comments that she made to Ms Flynn would be to ensure that correct processes had been followed in relation to the engagement of the plaintiff. In cross-examination the defendant agreed that as Ms Zappia was a non-ongoing employee she had no entitlement to appeal under regulation 5.7A of the Public Service Regulations. Her evidence was that there may have been a basis for some form of appeal either under the administrative procedures of the Department, under the relevant certified agreement or pursuant to the Public Service Act 1999 (Cth) or Administrative Decisions (Judicial Review) Act 1977 (Cth). She said that without undertaking a detailed examination of those possible sources she was not able to say any more detail whether or not an appeal would have been available to Ms Zappia at the time. She also gave evidence that even if there was no formal basis for an appeal, an informal appeal or complaint could be made to senior management if proper process was not followed in relation to the recruitment. She said that any action taken by her was simply designed to alleviate any concerns that Ms Zappia might have had, to “take the oxygen out of the issue” by talking to Ms Flynn. She said she had no intention to cause damage to the plaintiff and was adopting a “light touch” approach, conscious of the fact that Ms Flynn was new to the Australian Public Service. She thought she had a short, informal discussion with Ms Flynn and was reassured by what she was told. She said that it was likely, having regard to her understanding at the time, that if she had mentioned the possibility of there being an appeal it would have been to the effect that the engagement could be appealed if the correct processes had not been followed.
The plaintiff’s evidence about this conversation was that Ms Flynn called him into her office and told him that the defendant had told her about his conversation with Ms Zappia. He said that Ms Flynn told her that Ms Zappia could have appealed his appointment. He said that Ms Flynn explained that Ms Zappia had applied for the executive assistant position and was “embittered” by her failure to secure it. He said that Ms Flynn was very angry and appeared most distressed.
Ms Flynn recalled that she had had a conversation with Mr Twining in her room and it is likely that the door was closed. She didn’t believe she shouted although she was disappointed or annoyed that he had discussed the recruitment process in a way that might have brought her integrity into question. She considered that the plaintiff was naive to have spoken to Ms Zappia has he did. She couldn’t recall the defendant telling her that Ms Zappia could have appealed and could not recall telling the plaintiff that Ms Zappia could have appealed. She could only recall in a general sense a conversation with the plaintiff about his conversation with Ms Zappia. In a Probation Report prepared on 15 September 2004 she recorded:
[i]n early June, just after taking up the role, he commented inappropriately to an APSC staff member about his appointment. I spoke to him than about the importance of discretion and tact particularly in the role of EA to a Group Manager and the inappropriateness of his conversation.
In the light of this evidence I am satisfied that the plaintiff did have a conversation with Ms Zappia from which Ms Zappia took away the proposition that there had been a degree of informality in the recruitment process that was not consistent with her understanding of how the process was required to be carried out. She mentioned that either directly to the defendant or to Ms Martin. One way or the other the defendant became aware of the issue and raised the matter informally with Ms Flynn. Having regard to the plaintiff’s evidence as to what was said by Ms Flynn to him I am satisfied that the defendant did say to Ms Flynn that Ms Zappia could have appealed the process but I am satisfied that what she said to Ms Flynn was accurate in that it was in general terms and appropriately qualified by the proposition that any such “appeal” could only have been brought if the administratively or legally required processes were not followed. It may be that what was ultimately conveyed to the plaintiff by Ms Flynn did not completely reflect what had been said by the defendant to Ms Flynn.
On 24 August 2004, the plaintiff sent an email to Brian Kennedy, then Director of the National Gallery of Australia, from a work supplied computer and email address which read (in part):
[t]he NGA is a terminally dull institution and Sean Scully is about as sensual as a street sign. The insipid Brian Kennedy, with his parochial notions of art, must have realised the game was up when he saw the new NGV.
On 27 August 2004, Mr Kennedy wrote to Andrew Podger, then Public Service Commissioner, enclosing a copy of the plaintiff’s email and identifying the fact that it came from an e-mail address within Mr Podger’s organisation. He said:
I love to receive criticism, even that of the biting sort given to me from an e-mail address within your organisation. You might enjoy seeing it (attached), so that he can give you an idea of the wondrous spirit of one of our public service colleagues!
Perhaps not surprisingly, having regard to the role of the APSC and the Commissioner, Mr Podger was somewhat upset by receiving such a communication. On 31 August 2004, Mr Podger contacted Ms Flynn by telephone regarding the email received by Mr Kennedy. Ms Flynn said that Mr Podger was “very angry” and asked what Mr Twining was up to. A meeting was held between Mr Mike Jones (manager of the Corporate Services Group), Ms Flynn and the defendant to discuss the action to be taken in relation to the email incident. At that meeting, although there was some discussion of the possibility of terminating the plaintiff’s employment, the defendant advised that he should be left in his job.
On 31 August 2004 a decision was taken by the Commissioner to have the allegations of a breach by the plaintiff of the APS Code of Conduct investigated under the Commission’s procedures for determining breaches of the Code of Conduct rather than as part of the probation process. However Mr Jones did, at that stage, advise Mr Twining in writing that his period of probation would be extended by one month to 6 October 2004.
At this point, whether because of the pressures associated with the process arising from his e-mail to Mr Kennedy or for other reasons, the plaintiff’s conduct in the workplace appears to have deteriorated and become more of a concern for Ms Flynn. On 1 September 2004 she recorded in a file note that the plaintiff was angry and rude to staff. In oral evidence she could not recall any specific incidents but, having regard to the passage of time, that is not surprising. She recorded in her file note that she had spoken to him about his behaviour and advised him to learn to control his emotions. She also told him that he owed people on the floor an apology for his attitude. She said that his lack of tact was an issue and also mentioned his lack of attention to detail. The next day she recorded in a file note that the plaintiff appeared to be trying to pay attention. On Friday 3 September she recorded: “Tony distressed - wishes to tender his resignation as he feels he is unsuited to the position. Apologised for embarrassing me and the Commissioner.” In the same note she recorded a note to herself “his inability to manage his emotions”.
On 6 September 2004, Mr Jones reported to the Commissioner on the outcome of his investigation and determined that there had been a breach of the APS Code of Conduct and recommended that the plaintiff be reprimanded for the breach.
The plaintiff was absent from work on this day.
On 7 September 2004, Ms Flynn spoke with the plaintiff and advised that she could not trust him in the executive assistant position because she had counselled him on a lack of discretion and rudeness on a couple of previous occasions. She said that her position was not part of the Code of Conduct action but was a broader process. The plaintiff became agitated and was given permission to go home. She arranged for another staff member to act in the executive assistant position temporarily. The plaintiff didn’t return to the executive assistant position after that.
Mr Jones met with the plaintiff on 8 and 9 September and on 10 September he was reprimanded for his breach of the Code of Conduct.
On 15 September 2004, Ms Flynn completed a Probation Report with respect to the plaintiff. The final version of that report provided under the heading “Code of Conduct and Values” the following:
I found this to be Tony’s greatest area of challenge. He is unable to manage his emotional states in the workplace. This is expressed through inconsistencies in his attitude to others. He has never been rude to me. He has been rude and inappropriate to others on the floor and on the phone. I have spoken to him several times about the need to learn to manage his emotional responses. Staff have commented on hearing loud and angry phone conversations with others.
In early June, just after taking up the role, he commented inappropriately to an APSC staff member about his appointment ...
Wednesday September 1 [the plaintiff] was angry about a personal issue and spent a lot of time dealing with solicitors. He was angry and upset all day. I told him he needed to apologise to everyone on the floor for his behaviour. I told him to control his emotions and if he could not, to make the choice to go home. He apologised to one staff member.
Under the heading “Relations with the People” the report included:
[t]he recent Code of Conduct issue is one of several issues which have contributed to a diminished confidence in [the plaintiff] to manage his communication responses. His credibility with the Executive is damaged. The EL2s have provided feedback expressing dissatisfaction with his performance. His position as my EA is therefore, I believe, untenable. He is currently reassigned to other duties.
It appears that at this stage the plaintiff was working under Natalie Modric in the Governance and Business Support section and the report noted that the plaintiff would commence working in Program Delivery Branch, part of the Leadership, Learning and Development Group, from 1 October. He would be working under Mr Davidson and he would get a weekly progress report from Mr Davidson.
By minute dated 17 September 2004, the defendant wrote to the plaintiff to confirm advice previously given to him, that his period of probation would be extended by one month due to an alleged breach of the APS Code of Conduct. It also notified him that, in the light of the report from Ms Flynn, his probation would extend to the maximum six months. In the meantime he would be working in a position where his supervisor would report over a period of four weeks at the end of which a decision would be made as to his continued employment.
On 20 September 2004 there was a meeting between the defendant, Ms Flynn and the plaintiff. At that meeting he was given the minute of 17 September and given, or shown, the probation report. He requested that changes be made to the probation report. In particular he requested the removal of a portion of that report which referred to him being rude to another executive assistant, Ms Theresa Graham. Ms Flynn made these changes on 21 September and Mr Twining was provided with the final report on 24 September 2004. On 27 September 2004 the plaintiff provided a response to the comments made in the probation report which provided his explanations for some of the conduct referred to in the report. He raised in this document the issue of Ms Flynn referring to him as a “good boy” and it is in this response that there is the first reference to Ms Flynn having told him that Ms Zappia “could have appealed” his appointment. The evidence does not establish and, indeed, the plaintiff did not give evidence that, at the meeting on 20 September 2004 the defendant said that Ms Zappia could have appealed the plaintiff’s engagement as alleged in paragraph 20 of the statement of claim.
The plaintiff was notionally reassigned to work in the Project Delivery Team under Mr Davidson from 1 October 2004 but due to absences from work between 29 September and 5 October he did not commence there until 6 October 2004.
On 5 October 2004, the plaintiff met with the defendant and Mr Thomas Von Fintel (an Executive Level 1 in the defendant’s branch) to discuss a review of the probation decision of 17 September 2013, a request for two weeks leave without pay and the plaintiff’s wish to pursue a whistle blowing action against two colleagues.
After discussion with senior officers, the defendant informed the plaintiff that leave without pay was not granted, and that she, Mr Jones and the plaintiff were to meet the next day concerning the other issues.
On 6 October 2004, there was a meeting between the plaintiff, the defendant and Mr Jones. The plaintiff was advised as to options for review of the probation decision and his whistle blower action and was counselled about taking unauthorised leave.
On 7 October 2004, the plaintiff applied for review of the decision dated 17 September 2004, specifically requesting that the probation decision and Ms Flynn’s report (15 September 2004) be set aside and removed from his file and that the final assessment of his probation be undertaken exclusively by Mr Davidson. The plaintiff also separately sought an investigation of possible breaches of the APS Code by Ms Flynn and a Mr Bedford.
On 12 October 2004, the defendant sent a minute to Mr Podger and others recommending the appointment of officers to conduct the review and investigation requested by the plaintiff.
In the period 5 to 4 October the reports on the plaintiff’s work and conduct were generally positive.
On 20 October 2004, the plaintiff emailed the defendant complaining about Ms Flynn’s use of the term “good boy”. The defendant responded advising that she had raised the matter with Ms Flynn.
The same day Mr Davidson called a meeting with the plaintiff and his two immediate supervisors, Belinda Kevan and Carolyn Chase, in order to explain the correct lines of communication. Mr Davidson explained that complaints about Ms Flynn’s use of the term “good boy” should have been made to him as the plaintiff’s “line manager”. Mr Davidson made a file note in relation to that meeting. He recorded that there was a 20 minute conversation about this issue and that one of the issues raised was that “Tony appeared to have a real issue with directives”. He recorded that Tony stated that Ms Flynn and Mr Bedford were part of an independent investigation. After having recorded in some detail what was discussed at the meeting the file note then contained a heading “Observation” which included a number of dot points. The first dot point was: “Tony Twining has a track record for writing complaints without actually bringing the concern to the attention of the other party.”
Paragraph 21 of the statement of claim alleges that the defendant made a statement in these terms to Mr Davidson. Mr Davidson was cross-examined about what caused him to record the observation in his file note. He denied that either the defendant or Ms Flynn said the words recorded in his dot point. He was quite definite that the defendant had not said words like that to him. Although, he had little recollection apart from what was contained in the document, his evidence was that it was his own observation and that he had a recollection that on a number of occasions the plaintiff went around him to more senior executives or raised matters with staff on the floor, although he could not recall any specific details. He could recall that he had to talk to more senior executives on a number of occasions about issues raised by the plaintiff. I am satisfied in the light of Mr Davidson’s evidence and the contents of the file note on 20 October 2004, that the defendant did not say words to the effect of what is recorded in the first dot point but rather that the observation was an observation made by Mr Davidson of his own accord.
I note that following the cross-examination of Mr Davidson, the plaintiff made an application to join him as a defendant in the proceedings but, for reasons which I gave at the time, I refused that application.
On 21 October 2004, Mr Davidson wrote a file note regarding threatening behaviour by plaintiff. I accept that this note accurately records what occurred and that Mr Davidson did consider the conduct of the plaintiff to be threatening. Further, reports were prepared by the plaintiff’s immediate supervisors for the periods 14 to 21 October and 22 to 28 October which were much less favourable than those for the period 5 to 14 October. The reports indicated that the authors were concerned about reporting at all if their reports were to be made available to the plaintiff. Mr Davidson also made file notes during this period which recorded his concerns about the plaintiff’s behaviour and ability to do his job.
On 29 October 2004, Mr Davidson prepared a document entitled “Probation Review”. The Probation Review concluded that:
[a]lthough [the plaintiff] seemed to be working well initially [he] has gradually demonstrated that he is not capable of performing adequately when required to deal with a full workload and has not met the required standard of behaviour”. It is my recommendation to terminate [the plaintiff’s] engagement.
For the purposes of the investigation of allegations made by the plaintiff against Ms Flynn, Ms Flynn prepared a document dated 29 October 2004 entitled “Response to Allegations”.
On 1 November 2004, there was a meeting between Mr Von Fintel, Mr Davidson and the plaintiff. A copy of the probation report was given to the plaintiff. He was given a minute which indicated that he could provide written comments in relation to the matters raised in the probation report by 4 November 2004 to the delegate of the Commissioner, Mr Jones. He did so, providing a six page document dated 1 November 2004 in response to the report.
On 5 November 2004, a report was sent to Mr Jones regarding the outcome of the investigation into the plaintiff’s application for review of the decision of the defendant to extend his probation to the maximum six months. That report found that the additional two months probation period was appropriate, that the defendant’s decision was appropriate in light of the report received from Mr Davidson after the first months’ extended probation and that Mr Davidson’s report should remain on file. The findings of that report were noted and the Commissioner and Deputy Commissioner advised by Mr Jones. Another minute prepared by Mr Von Fintel dated 5 November 2004 was sent to Mr Jones regarding the plaintiff’s employment. That day Mr Jones made the decision to terminate the employment of the plaintiff from close of business on 5 November 2004 and signed a notice of termination to give effect to that decision.
On 8 November 2004, Mr Von Fintel wrote to the plaintiff enclosing a copy of the termination notice and the report of 5 November 2004 dealing with his request for review of action. It also updated him on the progress of the APS Code of Conduct investigation in relation to Ms Flynn and Mr Bedford saying that the relevant report had been forwarded to the delegate of the Commissioner. That report, recommended that Ms Flynn be counselled about appropriate language in the workplace. It is not clear whether that recommendation was ultimately adopted.
On 16 March 2005, Ms Flynn signed a reference with respect to the plaintiff.
The plaintiff’s evidence was that after his termination he lived on his savings until about May 2005. He was invited to apply for a job in Treasury and went to an interview. He was told that he had good prospects of getting the job and needed to fill out the form to ensure that he was on the temporary employment register. There were, however, questions that he was required to complete which would have required him to disclose whether he had been terminated from a previous position. He said that he was not prepared to complete the form because it would have required him to disclose his termination from employment at the APSC. As a consequence he did not get the job. He did not apply for other public service jobs because he was not prepared to rely upon the reference that was given which, although not referring at all to the fact that his employment had been terminated, did refer to the fact that he was appointed on probation to the position at the APSC from which an inference might have been drawn. He did not give a cogent explanation of why he was so unwilling to apply for any further public service employment. He did give evidence that he had applied for jobs with law firms but had been unsuccessful. He gave evidence about volunteer work which he had undertaken as a result of assistance from the Commonwealth Rehabilitation Service as well as some counselling that he had received. He described the difficulties that he had had in obtaining stable accommodation up until July 2012. He now undertakes volunteer work and has stable accommodation in Bulli, New South Wales.
Consideration
As will be apparent from the findings of fact above, I am not satisfied that:
· the defendant made the statement on 20 September 2004 that Ms Zappia “could have appealed” the plaintiff’s engagement (statement of claim [20]);
· the defendant made the statement that the plaintiff “has a track record for writing complaints without actually bringing the concerned to the attention of the other party” (statement of claim [21]).
That leaves only the statements alleged in paragraph 14 of the statement of claim to have been made on 16 June 2004, namely that the defendant said that the plaintiff had “commented inappropriately” in discussing the circumstances of his engagement with Ms Zappia and that Ms Zappia “could have appealed” the plaintiff’s engagement.
The words “commented inappropriately” come from the terms of the Probation Report dated 15 September 2004 prepared by Ms Flynn. The inference favourable to the plaintiff’s case that might be drawn from this is that these words reflected the words that were used by the defendant to Ms Flynn. However, I am not satisfied on the balance of probabilities that this is the case. The defendant could not recall the specific details of what she said to Ms Flynn. She did however give a coherent explanation of why she is likely to have had a discussion with Ms Flynn as a result of a report either from Ms Zappia or from Ms Martin. I am satisfied that she is unlikely to have had any very specific information or any precise allegation and only spoke briefly to Ms Flynn in order, as she saw it, to fulfil her responsibility to ensure that proper processes had been followed, to assist Ms Flynn in settling into her new role as a manager within the Australian Public Service and to “nip in the bud” any concerns that might exist amongst other staff about whether or not proper process had been followed. In the light of this explanation of how it is likely that she would deal with such an issue I am not satisfied on the balance of probabilities that I should draw the inference that the words used in the Probation Report were words used by the defendant to Ms Flynn. In my view it is more likely that the defendant would have simply reported what had been reported to her and sought assurance that a proper, merit-based process had been followed. That conclusion is also reinforced by my observation of the defendant in the witness box. She struck me as someone who would have been very careful with what she said and someone who would take care not to make statements that went beyond the information that she had. I think it is more likely that the description that the plaintiff had “commented inappropriately” was Ms Flynn’s and reflected her disappointment and annoyance at the plaintiff’s conduct which had the potential to bring her integrity into question.
In relation to the allegation that Ms Zappia “could have appealed” the plaintiff’s engagement, the first time that is recorded is in the plaintiff’s response to the Probation Report of 15 September 2004. In that the plaintiff said: “Ms Flynn has told me that Ms Zappia “could have appealed” my appointment, as if this is something to be deplored instead of the right of a concerned employee”. Once again, the plaintiff’s case depends on drawing the inference that what Ms Flynn is recorded as having said is indicative of what she was told by the defendant. There is no direct evidence of what the defendant said. Consistently with my conclusion above, I think it is likely that the defendant said to Ms Flynn that if there was a failure to comply with proper process in relation to the recruitment of the plaintiff then that had the potential to lead to an appeal. Having regard to the relatively minor nature of the issue and the likely relatively brief and informal conversation between the defendant and Ms Flynn I do not think it is likely that the matter was explored in any more detail than that. I accept the defendant’s evidence that she is likely to have been simply seeking an assurance that Ms Flynn was conscious of the appropriate process and had followed it in the plaintiff’s case. I do not accept that any intricacies of what kind of appeal might be contemplated or the legislative or other basis for such an appeal were canvassed or considered at that point. As a consequence I am satisfied that the defendant said to Ms Flynn on 16 June 2004 words to the effect that if proper process had not been followed in relation to the recruitment of Mr Twining then that had the potential to give rise to an appeal in relation to his engagement.
I am not satisfied that such a statement was false. In cross-examining the defendant, the plaintiff put to her the proposition that Ms Zappia was not entitled to appeal pursuant to the Public Service Act against the employment of the plaintiff because she was not at that stage an ongoing employee and clause 5.7A of the Public Service Regulations 1999 (Cth) limited the entitlement to appeal a decision to ongoing employees. However, I do not accept that the statement can be interpreted so narrowly as being limited to an appeal under that clause. An entitlement to appeal might arise from a variety of sources including the Public Service Act and its regulations, the Administrative Decisions (Judicial Review) Act, an industrial instrument or internal administrative procedures. There was no evidence about the existence of any relevant industrial instrument or particular internal administrative procedures. An appeal by way of an application for judicial review would, however, have been available. Be that as it may, particularly in an organisation such as the Australian Public Service Commission, one of the functions of which is to uphold appropriate public service values, if there was a situation where proper process had not been followed in relation to the recruitment of a staff member then, even if there was no statutory entitlement to an appeal in the sense understood by lawyers, there would certainly be potential for there to be a complaint made to the senior staff of the Commission which could reasonably be described in that context as an appeal. As a consequence, I am not satisfied that the statement was false, if it is relevant, in so far as the statement contained an opinion it was one honestly held by the defendant.
As a consequence of my findings, it is not necessary to consider the other elements of the cause of action, namely, malice and actual damage. However in case I am wrong as to falsity I express the following conclusions. I am not satisfied that any of the conduct of the defendant was actuated by malice. I accept her explanation as to the reasons why she is likely to have spoken to Ms Flynn which I described at [56] above. Those are perfectly proper reasons consistent with her duties and with good management within the Commission.
Further, I am not satisfied that the conduct of the defendant in making the statement to Ms Flynn, or indeed any other statement, caused the plaintiff actual damage. The actual damage claimed was financial loss arising from a failure to obtain paid employment in the period since 5 November 2004 to date and into the future. There are two reasons why I am not satisfied that actual loss has not been proved. The first is that the plaintiff has not established that his termination was causally related to what was said by the defendant. The issue to do with Ms Zappia was a relatively minor one. It paled into insignificance compared with (a) his e-mail correspondence with Brian Kennedy and (b) the adverse reports about his conduct and ability to control his emotions in the workplace in the period, in particular, after 1 September 2004. To the extent that there was any weight placed upon the Ms Zappia incident it was weight that derived from Ms Flynn’s comments about the plaintiff rather than the defendant’s. That means that there is not a sufficient causal link between the statements of the defendant and the plaintiff’s termination. The second reason for not accepting that actual damage has been proven is that I am not satisfied that the plaintiff’s failure to obtain employment following the termination has been caused by the statements of the defendant. The evidence of the plaintiff was that although he had good prospects of obtaining temporary employment in the Department of Treasury he did not follow through with his application. There have been subsequent attempts to secure employment but it has not been demonstrated that his termination from the public service, the provision of the reference that was provided by Ms Flynn or the absence of a reference from Mr Davidson, Ms Kevan and Ms Chase was causally related to his inability to obtain employment. There was really no satisfactory explanation as to why the plaintiff was unable to obtain any employment after he was terminated. It is clear that there was a period during which he was seeking to pursue administrative law relief in relation to the termination and some suggestions in the evidence that he may have had some mental health issues which made it more difficult for him to obtain employment. However the plaintiff bears the onus of proof on this issue and I am simply left speculating as to the actual cause of his inability to obtain employment. In those circumstances the plaintiff could not succeed on this element of his claim.
In summary, in relation to the only statement relied upon by the plaintiff that has been proved to have been made by the defendant:
· I am not satisfied that the statement, in the form that I have found it to have been made, was false;
· I am not satisfied that the statement was known to be false or otherwise malicious; and,
· I am not satisfied that it caused the plaintiff any actual damage.
Those findings are sufficient to dispose of this case. As indicated at [11] above it is therefore not necessary to deal with the submission made by the defendant that the cause of action for injurious falsehood did not extend to statements made in the context of employment within an organisation such as in this case.
I mention finally two points that arise from the written submissions of the plaintiff which were filed with leave of the Court after the conclusion of the hearing. The plaintiff sought to rely upon the decision in Wilkinson v Downton [1897] 2 QB 57. The cause of action described in that case is not the cause of action pleaded by the plaintiff in the present case. In any event, taking the comprehensive discussion of the current status of that cause of action in Clavel v Savage [2013] NSWSC 775 at [11]-[36] as a starting point, it is clear that the plaintiff has not made out the elements of that cause of action. He has not established any intention to cause (or reckless indifference to the possibility of) physical or psychiatric harm to the plaintiff, the causing of harm to the plaintiff going beyond mere distress or the absence of justification or lawful excuse.
Finally, the plaintiff made submissions attacking the credit of Mr Davidson and the defendant. As will be apparent from the findings that I have made above, having seen and heard both witnesses give evidence I accepted their evidence. While there were some aspects of their evidence which indicated an understandable fading of memory in the years since 2004 I was satisfied that they were doing their best to give truthful and accurate evidence. My observations of them in witness box were consistent with the impression gained from the other evidence in the case that in so far as each was involved in the plaintiff’s probation and the termination of his employment they acted appropriately and without any ill will or improper motive.
As a consequence, the order that I will make is that there is judgment for the defendant with costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Mossop.
Associate:
Date: 8 August 2013
Counsel for the plaintiff: In Person
Counsel for the defendant: Mr R Crowe SC
Solicitor for the defendant: Australian Government Solicitor
Date of hearing: 3, 4, 5 July 2013
Date of judgment: 8 August 2013
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