Brown v Maurice Blackburn Cashman
[2012] VCC 647
•18 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-07-02722
| FIONA BROWN |
| v |
| MAURICE BLACKBURN CASHMAN |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 & 31 January 2012; 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16 & 17 February 2012 | |
DATE OF JUDGMENT: | 18 May 2012 | |
CASE MAY BE CITED AS: | Brown v Maurice Blackburn Cashman | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 647 | |
REASONS FOR JUDGMENT
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SUBJECT –
CATCHWORDS –
LEGISLATION CITED –
CASES CITED – Czartyrko v Edith Cowan University [2005] HCA 14; Jones v Dunkell (1959) 101 CLR 298; Koehler v Cerebos (Australia) Limited [2005] HCA 15; Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35; [2005] HCA 62; Vairy v Wyong Shire Council [2005] HCA 62; Nationwide News Pty Ltd v Devandar Naidu & Anor [2007] NSWCA 377
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Peter Tree SC with Mr Stephen McCredie | Lennon Mazzeo |
| For the Defendant | Mr R J Stanley QC with Ms M Tsikaris | Minter Ellison |
HIS HONOUR:
Introduction
1 Fiona Brown, the plaintiff, is a graduate in law and science from the University of Tasmania. She majored in psychology in her science degree. She was twenty-three years old at the time of graduation.
2 After graduation, the plaintiff moved to Melbourne and completed the Leo Cussen course in order to be admitted to practice as a solicitor in Victoria. During the Leo Cussen course, the plaintiff met Ms Formica, who was a solicitor at Wisewoulds, a law firm. The plaintiff and Ms Formica became friends. The two women remained friends until 2003.
3 The plaintiff was employed by the defendant law firm, Maurice Blackburn Cashman (“MBC”) in 1998. The plaintiff was made a salaried partner of MBC on 1 July 1999. The plaintiff, in her capacity as head of Family Law Department at MBC recruited Ms Formica to become a consultant at MBC in 2000.[1]
[1]T 130-131
4 The plaintiff was the head of the Family Law Department at MBC from the commencement of her employment until she left MBC in November 2003.
5 The plaintiff’s claim in this case is that she has suffered a psychiatric injury as a result of:
·Ms Formica systematically undermining, harassing and humiliating the plaintiff; and
·the failure by Mr Michael Brett-Young, the managing partner of MBC, to act on the plaintiff’s complaints and requests for intervention in the actions of Ms Formica;
during the period 8 January 2003 and 17 November 2003.
6 The plaintiff’s claim is that MBC, as the employer, has breached the duty of care owed to her as an employee.
7 The plaintiff alleges that she continues to suffer from psychiatric injury and has not been able to work from November 2003 until the present. Her claim is that due to her psychiatric injury, she will not be able to work as a solicitor in the future.
8 The plaintiff ceased work at MBC on 17 November 2003. The plaintiff made a claim for workers compensation as a result of her psychiatric injury. The plaintiff also claimed on a disability insurance policy based on her psychiatric injury. She was in receipt of total gross monthly payments of approximately $12,000 which were continuing at the time of the trial.[2]
[2]T 285
9 The plaintiff has three children. Eloise was born on 22 December 2002. Callum was born on 30 September 2004.[3] Emily was born on 10 September 2008.[4] Each of the children appeared in the DVD surveillance film.[5]
[3]T 254
[4]T 256
[5]Exhibit H
10 In November 2004 the plaintiff received a complaint to the Legal Ombudsman office concerning allegations made by a former client, Ms Patricia Palma. The complaint process continued on for approximately a year until the end of 2005.
11 The plaintiff moved the family from Hampton in Melbourne to Leongatha which was her husbands home town in October 2005.
12 The plaintiff then moved her family to Hobart in April 2007.[6] The plaintiff’s husband, Tony Ritchie, was going to conduct a café type business in Hobart. Her husband closed the business as it was ultimately unprofitable.
[6]T 255
13 The plaintiff and her husband undertook a substantial renovation of the family home in Hobart. The construction work commenced in June 2008.[7] The total cost of the renovation was approximately $400,000.[8] The renovations were supervised by Mr Ritchie, the plaintiff’s husband. The renovation was completed in the middle of 2009. It was a difficult process with the involvement of three builders. The plaintiff in her evidence said she had little involvement in the organisation and supervision of the renovation of the family home. Nevertheless, I accept that the renovation of the family home was a source of stress for her.
[7]T 363
[8]T 369
14 The plaintiff has also been involved with a “neighbourhood dispute” with her neighbours over cutting down trees along the common boundary. The plaintiffs husband was alleged to have assaulted a parent from the childrens school. The catalyst for this incident was an improper suggestion made by that parent about the plaintiff’s daughter. I find that the resulting court action was a source of stress to the plaintiff. The two conflicts referred to in this paragraph are examples of the pressure situations the plaintiff has been exposed to since leaving work at MBC.
15 The plaintiff has sought medical advice from doctors, psychologists, psychiatrists and what are referred to in the evidence as alternative medical practitioners. The plaintiff continues to be treated and I will deal with the medical evidence later in these reasons.
The Issues Which Require Determination
16 The issues which require determination in this case are as follows:
(1)What was the scope and content of the duty of care owed by the defendant, MBC, to the plaintiff in the circumstances of this case?
(2)Was the plaintiff undermined, harassed or humiliated (“bullied”) by Ms Formica between 8 January 2003 and 17 November 2003?
(3)Was it reasonably foreseeable that the plaintiff would suffer psychiatric injury in the circumstances of this case?
(4)Did the defendant, MBC, breach its duty of care to the plaintiff in the circumstances of this case?
(5)Did the breach of the duty of care by the defendant, MBC, cause a psychiatric injury to the plaintiff as alleged?
(6)If “yes” to the above issues, what is the appropriate assessment of damages for the pain and suffering and pecuniary loss damages suffered by the plaintiff as a result of the psychiatric injury?
The Scope and Content of the Duty of Care of the Defendant, Maurice Blackburn Cashman
17 As the employer, the duty owed by Maurice Blackburn Cashman (“MBC”) to the plaintiff is that set out in the joint judgment of the High Court in Czartyrko v Edith Cowan University [2005] HCA 14 at paragraph [12].
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”
18 In this case, the plaintiff alleged that she has suffered psychiatric injury as a result of the bullying, harassing, and intimidating behaviour of a fellow employee, Lee Formica. In the alternative, the plaintiff alleges that she has suffered a psychiatric injury because the employer did not act on her complaint about the behaviour of Lee Formica.
19 It was contended by counsel for the plaintiff and counsel for the defendant that the real legal issue in this case is the question of foreseeability. In Australia, in cases involving psychiatric injury arising out of or in the course of employment, the leading authority is the High Court decision in Koehler v Cerebos (Australia) Limited [2005] HCA 15. In that case, the joint judgment of the High Court referred to the authority of Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35 and confirmed that the Court had held that “normal fortitude” was not a precondition to liability for negligently inflicting psychiatric injury. An employer cannot rely on the concept of “normal fortitude” of the plaintiff to satisfy the foreseeability test.
20 In the joint judgment of Koehler, the Court stated:
“[33] The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.
…
[35] The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.
[36] Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.
[41] The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court’s conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant’s psychiatric health.”
21 The above quoted principles set out in Koehler are the legal principles that are relied upon in this judgment.
22 In this case, where the plaintiff alleges that the psychiatric injury has resulted from the bullying, harassing, intimidating behaviour of a fellow employee, the inquiry into the breach of duty by the defendant cannot focus only upon the way in which a particular injury has occurred. The inquiry about the breach of duty must attempt to identify the reasonable employer’s response to the foresight of the risk of occurrence of the psychiatric injury which was suffered by the plaintiff.
23 In Vairy v Wyong Shire Council [2005] HCA 62, Hayne J in answering the question posed in these terms, “what is to be done in response to the various foreseeable risks of injury”, stated as follows:
“[124] Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.
[125] There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.
Look forward or look back?
[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.”
24 In the case of Nationwide News Pty Ltd v Devandar Naidu & Anor [2007] NSWCA 377, Spigelman CJ addressed the issue of the prospective nature of the inquiry in respect of breach of duty. At paragraph [20] Spigelman CJ stated as follows:
“[20] The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.”
25 Spigelman CJ continues:
“[23] The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.”
26 It is clear that in law firms such as MBC, employees will suffer from stress. In this case it is not stress that is complained about by the plaintiff, but the behaviour of Ms Formica toward her and the fact that Michael Brett-Young, as senior partner, did not do anything about it.
27 At all relevant times, the plaintiff was a salaried partner of the defendant firm. The plaintiff was the head of the Family Law Department within that legal firm. Ms Formica was also a salaried partner from 1 July 2003 onwards. Prior to that time, she had worked in the defendant law firm as a consultant on a part time basis. The plaintiff and Ms Formica had been long term friends and work colleagues. At all times when the plaintiff was at work at the defendant firm, she was the head of the Family Law Department. Between January 2003 and 5 May 2003, whilst the plaintiff was on maternity leave, Ms Formica was the acting head of department. Immediately upon the return of the plaintiff to work at MBC, the plaintiff resumed her position as head of the Family Law Department. Ms Formica continued on as a consultant at MCB until 1 July 2003, when she was made a salaried partner. Ms Formica’s role from that point on was a marketing role for the Family Law Department of the defendant law firm.
28 The respective roles of the plaintiff and Ms Formica within the defendant law firm are not typical of what a bullying case may entail. In the scheme of things, if any one of them was in a subordinate role within this legal firm, it was Lee Formica.
29 Mr Michael Brett-Young was the managing partner of the defendant law firm at the relevant time in 2002 and 2003. His role in that capacity and his response to the requests and complaints made both by the plaintiff and Lee Formica are relevant to the determination of foreseeability in this case.
Was the plaintiff undermined, harassed or humiliated (“bullied”) by Ms Formica between 8 January 2003 and 17 November 2003?
30 The plaintiff, by her Statement of Claim dated 18 July 2007, alleges that she was systematically undermined, harassed and humiliated by Lee Formica. The pleading set out a number of allegations enunciated as paragraph 5 (a) to (q). In sub-paragraph 5 (q), the plaintiff alleges that the previous allegations (a) to (p) inclusive are relied upon to substantiate that the plaintiff had been bullied by Lee Formica.
31 The plaintiff’s Counsel, Mr Tree SC, submitted that the appropriate definition for bullying was set out the Prevention of Bullying and Violence at Work document dated February 2003. This is Exhibit N in the proceeding.
32 In that publication, the definition is set out on page 6. It reads as follows:
“Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.
Within this definition:
‘Unreasonable behaviour’ means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.
‘Behaviour’ includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.
‘Risk to health and safety’ includes a risk to the mental or physical health of the employee.”
33 The above definition of workplace bullying does not have any legislative force. It is from a guidance note produced and published by WorkSafe Victoria in February of 2003. I accept that this is a reasonable working definition of workplace bullying and will analyse the allegations against Ms Formica on that basis.
(1) Allegations set out in paragraph 5 (a)(i)
“Formica gave initial support to the plaintiff having a complete break from her work on 8/1/2003 and then attempted to isolate her from her work colleagues and subsequently undermine her and interfere with her maternity leave by complaining unjustifiable to Brett-Young on or about 20 January 2003 that the plaintiff needed to attend at her workplace to put her files in order.”
(2) Allegations set out in paragraph 5 (a)(ii)
“Formica unjustifiably criticised the plaintiff by email on 21 January 2003 for the absence of file notes and inferentially treated the plaintiff as if she, Formica, was a disappointed superior and not as she then was, as subordinate and a friend.”
34 The plaintiff had given birth to her first child earlier than had been anticipated. The birth occurred on 22 December 2002. On 6 January 2003, the plaintiff sent an email to Lee Formica setting out a few notes for her files. This appears at page 115 and 116 of Exhibit B, known as the Jury Book. The reason that the plaintiff sent that email was that she had failed to place on the files that she was leaving behind a detailed note in respect of those files, for a handover to the next practitioner handling the files.
35 In response to that email of 6 January 2003, Ms Formica sent the following email to the plaintiff:
“Sent: Wednesday, 8 January 2003 1:59 PM
Subject: hello
Hi fi,
hope all is well and you’re getting enough sleep and enjoying your baby. Got your recent email. We’ve had a chat and we are not going to discuss files with you. This is a new chapter in your life and you don’t need the grind of work to fill your otherwise busy days. We’ll keep you informed of stuff as and when and if you need to know – not that you need to know that much.
But your new role is a mum and you should embrace it. You’ll be back at work in no time so …. Put it into perspective and enjoy that little bundle while you’ve got the chance. Work will always be here. So don’t fret and remember you’re on maternity leave and you’ll be stressing yourself out soon enough with work, motherhood and a thousand other things you’ll do as a working mother.
Sorry for the strong words but really I've been there and I know how hard it is for us “career women in our 30’s with new baby” to sever our identity from work but do it NOW. Eloise will only be this tiny for a very short while. My baby is 4 today so I can vouch for how fast time flies.
We are all frantic but coping. Will chat with you soon – about your new mother’s group and other domestic things.
luv,
Lee xx
Lee Formica
Accredited Family Law Specialist”[9]
[9]Exhibit B, page 117
36 In her evidence, the plaintiff described this email as follows:
“I thought it was a very considerate email from Lee and very understanding of me being a new mum and supportive and it gave me a lot of comfort.”[10]
[10]T 148, L17-19
37 The plaintiff communicated with her personal assistant, Kate Watts, on a number of occasions by email after the 8 January 2003. Ms Formica was at that time running her own files as well as supervising and/or conducting the files that she had taken over from the plaintiff.
38 In her evidence, Ms Formica was asked whether or not she thought it appropriate for notes to be left on the files that were being taken over by another member of the department. Ms Formica said as follows:
“A: The usual practice is that you do detailed file notes. If it's a property case you advise whether there are outstanding valuation issues. You ‑ ‑ ‑
Q: Without going into detail, is it something usual and expected as appropriate practice?
A: Okay, you give files - yes. And also, what we also do is sometimes physical hand over of files and introduction to the client.
Q: Having realised that there was no file notes, how did that affect the extent of your workload when you were dealing with Fiona Brown's files?
A: I had to do a lot of reading. I had to piece it together and it added to my time.
Q: On one occasion did something happen when you were working late and you had contact with Michael Brett-Young?
A: Yes. This was now 20 January, some two and a half weeks after we'd got back to work, and I was working back late and Mike came in and he said, ‘What are you doing here?’ Just jokingly - not jokingly, but in a light manner, and I said, ‘I'm just trying to get on top of some files.’ And just in passing and certainly just without any intention of getting Fiona into trouble, I simply said, ‘Fiona seems to have not left many file notes.’
Q: Are you able to remember how late this was?
Q: It would have been after 7.[11]
[11]T 803-804
39 As a result of this exchange between Formica and Michael Brett-Young, Mr Brett-Young contacted the plaintiff and asked her to come in to prepare notes on the files. His evidence was that he did not want the files going out of the office and that it would be necessary for the plaintiff to come into the office and do the notes.[12]
[12]T 975
40 On 21 January 2003, Ms Formica sent an email to the plaintiff. The email is as follows:
“Sent: Tuesday, 21 January 2003 9:11 AM
Subject: greetings
Hi Fee
have spoken to Kate and the new batteries in the Dictaphone are raring to go for those file notes. I think you’ll need about 2 -3 hours to do it properly. Kate has been great – she has gone thru your filing cabinet and done the best she could to create lists of files for each of us, a short description of the matter (as best she could) and to diarise hearing dates.
You can imagine what a waste of time and bewildering it has been not to know precisely what we were acquiring from you and trying to assess whether we should take on new clients or not AND deal with all the new super stuff on your own files etc. What happened to doing a few file notes a day from 1 December and distributing them before you went on maternity leave!!!!!
You’ll need to give us a thorough break down of each file – even an understanding if client is easy, demanding, hard work etc. I need to know your views as child rep on child rep cases. You know the usual thing. I think you need to do ALL files not just what is current. We’re already had 2 ‘sleepers’ ring up for help. Obviously if you’re not back until late April/May we can’t rely on things remaining dormant. And anyway it’s murphy’s law that applies ….
I really don’t think it’s going to work if Tony and Eloise come in for hours. Perhaps you should fee her, come in, dictate your file notes and then arrange for Tony to drop in later so we can coo over Eloise for a short time. We really are very busy. You won’t have much time with Kate as Mart is still away and will be away as well tomorrow.
Things are chugging along at a fast pace.
See you then.
Lee xx
Lee Formica
Accredited Family Law Specialist”[13]
[13]Exhibit B, page 121B
41 Ms Formica had contacted the plaintiff the evening she sent this email. The plaintiff gave evidence in relation to her reaction to this email as follows:
“Q: If not, please feel free to take the time to read it. But can you tell His Honour please, what your state of mind was when you received that email?
A: I was pretty shocked again. It was pretty hard and cold, and especially dictating what I had to do with my four week old child, feed her, leave her at home, you know, that sort of thing, and yeah, I was pretty upset by it.
Q: Was it similar in tone to the conversation that you'd had with her the preceding evening?
A: No.
Q: In what way was there a difference between this communication and your conversation the preceding evening?
A: Well, she seemed you know, happier the previous evening that I said I was coming in and I sort of - I thought I'd allayed her concerns.”[14]
[14]T 151
42 The plaintiff also alleged that Ms Formica was instructing the staff, Kate Watts and Georgina Presnell (Gregory) not to contact the plaintiff. If that in fact occurred, the logical conclusion is that, consistent with Formica’s earlier emails, she was seeking to preserve and protect the plaintiff’s maternity leave from being interrupted by work matters. I find that the correspondence and actions of Ms Formica at this time did not constitute any undermining of the plaintiff.
43 The allegation that the email of 21 January 2003 indicates that Ms Formica was treating the plaintiff from a position of “a disappointed superior” is not correct. The plain reading of that email is simply Ms Formica giving practical advice about what was required and how it was to be achieved.
(3) The allegations in paragraph 5 (1)(iii)
44 The plaintiff alleges in this part of the pleading that:
“Formica failed to properly supervise junior solicitors requiring the plaintiff to give urgent assistance through her maternity leave.”
45 The plaintiff had given evidence that Ms Formica had instructed the support staff not to contact her during the maternity leave. She had decided that Kate Watts and Georgie Pressnall were not getting sufficient supervision. The plaintiff asked Ms Watts and Ms Pressnall to call her if they needed any assistance.[15] Ms Watts, in her evidence, confirmed that she had been instructed not to contact Fiona because she was on maternity leave.[16] Ms Watts stated that she contacted the plaintiff nearly every second day, mainly to do with the baby, but sometimes to do with work.[17]
[15]T 152
[16]T 754, L12-14
[17]T 753
46 I find that these contacts with the plaintiff by her support staff were mainly invited by the plaintiff herself. It is not indicative of a failure by Ms Formica, as the acting head of department, to supervise those support staff. Ms Gregory, in her evidence, stated that in her recollection everybody was busy, it was a high volume practice. She said that Lee Formica was the busiest.[18]
[18]T 636, L9-15
47 I conclude that Ms Formica, whilst being very busy, was also in a position of supervising those that were in the Family Law Department at MBC. I do not accept that Ms Formica failed in her duties as the acting department head of the Family Law Department, which would have necessitated the plaintiff to be contacted by junior staff in the firm.
(4) Allegations in paragraph 5 (a)(iv)
48 The plaintiff alleges:
“Formica’s relationship with the plaintiff changed from a friend and colleague to unfriendly colleague.”
49 I find that this particular is a statement of a perception held by the plaintiff. There is no evidence that the acting head of the department Ms Formica engaged in any unreasonable behaviour which was directed toward the plaintiff. This allegation is unsustainable on the evidence.
(5) The allegations in paragraph 5 (a)(v) and (vi)
50 The plaintiff alleges:
(v) “Formica created a crisis in respect of one of the plaintiff’s files (that Formica had been entrusted with during the plaintiff’s leave) for her second day back from maternity leave, requiring the plaintiff to take action during her maternity leave to prevent a disaster;
(vi) “Formica by 2 emails of 1.5.03 unjustifiably abused the plaintiff to manufacture further tension and hostility for the plaintiff upon her return from maternity leave on 5.5.03”.
51 The allegations set out in these two paragraphs revolve around the incident known as the “C.... file”. The background to this matter was that the plaintiff was expected to return to work on 5 May 2003 at the completion of her maternity leave. The C.... matter was an Order 24 proceeding. The hearing was to take place in the Dandenong Family Court. The C.... file had previously been a file of the plaintiff. Whilst she was on maternity leave, Ms Formica was supervising that file.
52 Kate Watts, the assistant to the plaintiff, had advised Ms Formica on 29 April 2003 that the C.... matter was on for hearing in the following week, Tuesday, 6 May 2003. At that time, Ms Formica was not working on Tuesdays.
53 Ms Watts, on 30 April 2003, emailed the plaintiff to advise her that the C.... matter was on for hearing and that Lee Formica had suggested that the plaintiff could attend to the case on 6 May 2003.[19]
[19]Exhibit B, page 141B
54 Later in the day of 30 April 2003, at 4.21 pm, Kate Watts sent the following email to Lee Formica:[20]
[20]Exhibit B, page 142
“Sent: 30 April 2003 4:21 PM
Subject: [Client’s name]
I have spoken with Fiona about the Order 24 conference on Tuesday of next week. She said is more than happy to go to Dandenong and appear. She has asked that she has some time with you on Monday, 5 May 2003, to discuss the file in detail and she also asks that you deal with all you can before the weekend (if possible) as you are more up to date than her. The file is in your room.
Thanks
DISCLAIMER
…
Kate Watts
Assistant to Fiona Brown”
55 Ms Formica responds at 6.28 pm:[21]
[21]Exhibit B, page 143
“Sent: 30 April 2003 6:28 PM
Subject: [Client’s name]
Kate I think you know what my timetable is like at the moment and my commitments for Thursday and Friday.
If Fiona can do the Order 24 conf on Tuesday you can courier the file to her tomorrow ie Thursday to prepare for next week. I am NOT in a position to prepare this for her and will not be doing anything further on it. I shall return the file to you. It needs a lot of attention before Monday which Fiona can do from home. If she doesn’t do any work on it there will be a costs order made next week.
Lee Formica
Accredited Family law Specialist”
56 Ms Formica follows up that email with a further one to Kate Watts dated 30 April 2003 at 6.35 pm. [22]
[22]Exhibit B, page 144
“Sent: Wednesday, 30 April 2003 6:35 PM
Subject: re my previous email
Am not happy – or did I not make that clear?
Am going home to do what I love doing most – more f…ing work for this place.
See you tomorrow.
Lee Formica
Accredited Family Law Specialist”
57 Whilst these emails are directed to Ms Watts, Ms Formica in her evidence said she did not expect Ms Watts to send her emails on to Fiona.[23]
[23]T 885, 886
58 Ms Formica explained these emails on the basis that she was very stressed but conceded that it was inconsiderate of her to send them and that she regretted it.[24]
[24]T 887
59 The next day the plaintiff sent an email to Ms Formica at 10.43 am. The email appears at page 145 of Exhibit B. In the email the plaintiff sets out her domestic difficulties with being able to assist in the Order 24 conference for the C.... file on the following Tuesday. She finishes the email with the words, “I am disappointed”.
60 There are other emails passing between Kate Watts and the plaintiff on 1 May 2003. These emails are completed by 11.00 am on that day. It is clear from those emails that the arrangements for the C.... matter had been finalised and sorted out. Another employee was going to do the preparation for the C…. file Order 24 conference.
61 At 11.58 am, Ms Formica sent an email dated 1 May 2003 to the plaintiff. This email appears at page 150 of Exhibit B, the Jury Book. It states as follows:
“Sent: Thursday, 1 May 2003 11:58 AM
Subject: Re: [Client’s name] – form Fiona
well welcome back. This is what I have had to confront for over 4 months. The dept is in an appalling state and my level of disappointment in you and he way you left your files and your general attitude before your departure on maternity leave is extremely deep. I also have a family and finally you know what it is like to juggle. I have not forgotten your words when I asked why we did not try to work in a team and you shrugged your shoulders and told me it was ‘the nature of family law.’ As I said to myself then – what goes round comes round. It has come round for you. I am still waiting for you to thank me for the extremely long hours, devotion and loyalty I have demonstrated to you and this dept in extremely trying circumstances. I have not heard a whisper from you.
Rather than organising a special dinner for Kate and Georgie to thank them for ‘all their had work’ if you had any modicum of understanding of what I and Martine have done you could have extended some courtesy and thanked us as well. Frankly without me this dept would have sunk in the last 4 months. Don’t ever forget that – and don’t you ever dare say you’re disappointed in me. Get real about what’s been happening here.
Fundamentally we are friends and have been for a very long time. When you get back we can have lunch and patch up our differences. I do not hold grudges and I'm happy to talk things through with you. We are a good team together despite what others in this dept have tried to create in the last few months. I take it Kate did not send you the subsequent email I forwarded her after that one. Did she?
You might also care to know I sent that first email to Kate at 6.30 last night. This was after another gruelling day in a 4 day trial with silk. I worked ANZAC day, conferred for 4 hours on Sunday as well as attending to the other 100 million things I do for the people in this dept including you. Oh and by the way I have 2 children who need me as well and are missing me terribly. My usual day is 8am to 7.30pm in the office 5 days a week, one or 2 evenings of work at home and part of the weekend working. I have a family who are missing me heaps.
So get off my back. I'm sorry you’re stressed but you’ll have to get used to managing kids and work – with or without support – Like all other working mothers. This is the real world. You’re the one who said you were more than happy to do things from home – or was that just limited to ringing Kate every day for who knows what purposes. I am unable to do [Client’s name]. The file is with Kate.
Don’t ever send me an email like that again. I am totally offended.
Lee Formica
Accredited Family Law Specialist”
62 It is this email that Ms Formica regrets sending. She also concedes that it was inconsiderate for her to send the email. Her explanation was that she was very stressed and had been working very hard at this time and was unable to assist in the preparation of the C.... matter for the following week. In her evidence, when cross-examined, she said:
“Q: We then come to your email at p.150. Now in fairness to you do I understand your evidence to be that in retrospect you're ashamed of sending this email?
A: I regret it.
Q: But not ashamed?
A: I am ashamed and I regret it.[25]
[25]T 900
63 At a later stage in her evidence, Ms Formica said that she sent the email in anger and she was lashing out.[26]
[26]T 963
64 On the following day, Ms Formica phoned the plaintiff. Ms Formica’s evidence was that she had phoned in order to apologise and get the relationship with the plaintiff back on track. The plaintiff did not take the phone call, so Ms Formica says she left a message on the phone basically indicating that she was apologising, that she wanted to catch up over the weekend. It is to be remembered that this is the weekend immediately before Ms Brown’s return to work.
65 The plaintiff’s evidence on this point was that she did receive a message and did not respond to Ms Formica’s request. In the course of evidence, this incident or exchange of phone message, became referred to as the “first olive branch”, the olive branch being that Ms Formica had attempted to contact the plaintiff and patch up the relationship. The plaintiff, in her evidence, agreed that the tenor of the phone message was that she, Ms Formica, wanted to meet with her over the weekend and that the purpose of the call was to try and sort it out between friends.[27]
[27]T 435
66 The plaintiff was asked in relation to the apology the following question:
“Q: Look I'm asking you, did you believe when you got the phone call that she might have been wanting to talk about the matter and explain and/or apologise?
A: Possibly.”[28]
[28]T 432 L21-23
67 The plaintiff went on to say that she did not respond to the phone call by Ms Formica because of what had been said in the email.
68 I conclude from this exchange of emails and evidence given by the two protagonists, the plaintiff and Ms Formica, that both of them were under considerable pressure in their lives, both personal and professional. Each of them had, by the use of email, sent regrettable messages to one another. I do not accept that a reasonable person would classify these as being communications which would victimise, humiliate, undermine or threaten the recipient, in this case the plaintiff.
69 On 29 April 2003, the plaintiff came into the city and had lunch with Michael Brett-Young, the managing partner of the defendant, MBC. At that meeting, Mr Brett-Young and the plaintiff discussed the work arrangements for her return to work after maternity leave. During the course of that lunch/meeting, Mr Brett-Young advised the plaintiff that Ms Formica was to be made a partner of the firm. The plaintiff’s reaction to this news was that she thought it was inappropriate that Ms Formica was being made a partner without consultation with her, the plaintiff.[29] The plaintiff was to remain the head of the Family Law Department and Ms Formica was to be in charge of marketing the Family Law section of MBC. At this stage, it was made clear to the plaintiff by Michael Brett-Young that the partnership were fully supportive of the continuing development of the Family Law Department.
[29]T 408
70 The plaintiff gave evidence that the threat of costs being made on the C.... file was bullying and intimidating and made her feel uncomfortable.[30] The email containing the statement, “If she doesn’t do any work on it there will be a costs order made next week” was from Lee Formica to Kate Watts. The threat, if it is to be called that, is not directed at the plaintiff. Ms Formica did not expect that email would be forwarded on to the plaintiff.
[30]T 416
71 I find that it is fair to categorise this statement not as a threat, but as a statement of fact in the sense that if the issues in relation to the C.... matter are not attended to prior to the hearing date, then if that party is not prepared for the hearing, a costs order would inevitably be made against that party; ie C..... I do not accept there is anything threatening or bullying about such a statement.
72 Upon the plaintiff’s return to work, she and Ms Formica went to lunch. The luncheon day was 7 May 2003. Ms Formica outlined what her concerns were between herself and the plaintiff over the period of the maternity leave. The plaintiff set out her concerns that Lee had not shown enough care about her during her maternity leave. In effect, the two women decided to bury their differences and get on with their lives and work. The plaintiff described their position as being more wary of one another. It was not as close as it was in the past. There was no issue until the end of June.[31]
[31]T 440-441
(6) Allegations set out in paragraph 5 (c) of the Statement of Claim
73 The allegation in this paragraph is set out as follows:
“By email on 27 June 2003, Formica unjustifiably accused the plaintiff of traducing her by wrongly alleging (from Formica’s point of view) that a meeting had been cancelled because Formica had an unexpected family commitment.”
74 The evidence is that there was to be a meeting on 26 June 2003 for the Family Law Department of MBC. In an email sent on that date at 5.10 pm, the plaintiff advised all participants that the meeting was cancelled because Ms Formica had to go home to attend to one of her children.[32]
[32]Exhibit B, page 152
75 On the following day, Ms Formica sent this email to Ms Brown at 10.01 am:
“Subject: re meeting
Hey the meeting wasn’t cancelled Thursday PM because of me or Natalie – it was never going to take place you all had to go to a seminar. It’s hard enough being a mum in the workplace without her being used as the reason why meetings don’t take place!
Lee Formica”
76 This email appears at page 153 of Exhibit B. Later on the same day, Ms Formica sent a further email to the plaintiff. This email appears at page 153A of the Jury Book, Exhibit B. It could be categorised as being a friendly email. The evidence relating to this email was as follows. The plaintiff stated in her evidence:
“Q: Did you subsequently speak to Ms Formica in relation to her email to you?‑‑‑
A: Yes.
Q: What did you say to your recollection?‑‑‑
A: I went into her office and I just explained to her that I had no intention behind the email of anything critical or condemning of her being not there for the reason that she'd given.
Q: Did she appear to accept what you were saying?
A: She seemed okay.”[33]
[33]T 174
77 When the plaintiff was cross-examined about the email appearing at page 153 of the Jury Book, the following was stated:
“Q: Did you think she was justified in making that complaint?
A: Well I was surprised to receive it because I didn't intend it that way and I spoke to her about it.
Q: Did you think that there was something sinister about it?
A: Well she - I thought she was unjustified in it. I said to her.
Q: Was it a matter of any real concern?
A: In isolation, no.
Q: I mean what did it mean? What did it matter?
A: That's right, that why I didn't understand why she was making a big deal of it.”[34]
[34]T 443
78 The Ms Formica was cross-examined about the sending of this email during the course of her evidence. The evidence was as follows:
“Q: Did you take some umbrage at the fact that you had been put down as part of the reason for the seminar being cancelled. Did you take some offence at that?
A: No, I wasn't offended about the seminar, I thought the meeting had been cancelled because of the seminar, not because of my situation. So it was a misunderstanding and then the next day, I think, Fiona and I spoke and she explained that it wasn't - I had the day wrong and she clarified it and I said, "Okay, thanks." It was just a nothing.”[35]
[35]T 911
79 I conclude that this exchange of email and the conversations around it clearly indicate that there is nothing humiliating or undermining or bullying or threatening about any of this exchange. It is a classic “storm in a teacup”.
(7) The allegations set out in paragraph 5 (d)
80 The plaintiff alleges in this paragraph that:
“Formica by sundry emails on 25 July 2003 unjustifiably belittled, humiliated and wrongly accused the plaintiff.”
81 The issues in dispute between Ms Formica and the plaintiff on this day were to do with the allocation of staff within the Family Law Department and a failure to communicate the changes to the staff. The other issue was the preparation of costs agreements with Government departments. The position at MBC was that Government departments were dealt with by way of tender, rather than costs agreements. The emails appear at pages 154, 155, 156, 159, 160, 161, 162 and 164 of the Jury Book, which is Exhibit B in the proceeding.
82 After this exchange of emails, at approximately lunchtime, Ms Formica invited the plaintiff to coffee. The pair attended lunch together with others in the office and behaved in an amicable and sociable way. At some time after lunch, Ms Formica attended at the plaintiff’s office and presented her with a bunch of flowers.
83 The plaintiff’s evidence on this was:[36]
[36]T 181, L26- T 182, L13
“Q: Did anything occur after the lunch?
A: Yes. She ‑ ‑ ‑
Q: ‘She’ being who?
A: Sorry, Lee went out and I think I went back upstairs to my office. I think she - well, I know she did. She came in and gave me a bunch of flowers and said she was sorry for what had happened that morning, for all the emails. And she - I don't know if she promised but she said to me, "I won't do this to you again. I'll talk to you." So, I ‑ ‑ ‑
Q: Did that offer you any comfort or sense of relief?
A: Yes, it did.
Q: It probably means different things to different people but how did you interpret receiving a bunch of flowers from Ms Formica?
A: It was a nice gesture.
Q: Had she ever given you flowers before?
A: I can't remember. She might have given me them when I had the baby or - when she came to see me. I can't remember. Or on a birthday, I can't remember.
Q: But did you think that that had healed all the wounds?
A: No. No. But it was on the way to hopefully healing.”
84 Later on in cross-examination, the plaintiff said:[37]
“Q: What did you think when she gave you the flowers?
A: I was confused really. I felt on the one hand she's - well after the other - the other emails that day, that she knew she'd upset me and she was obviously apologising.”
[37]T 446, L18-2
85 I find and accept that Ms Formica, by presenting the plaintiff with a bunch of flowers on this day, was apologising for the email exchange earlier on in the day. I accept that the plaintiff saw it as an apology and accepted it as such. The allegations here set out for 25 July 2003 do not amount to unjustifiably belittling humiliating or wrongly accusing the plaintiff in the context of a bullying and threatening or undermining manner. In the course of the trial, this presentation of the flowers became referred to as “the second olive branch”.
(8) Allegations set out in paragraph 5 (3) of the Statement of Claim
86 The allegation set out in this sub-paragraph is related to an article which appeared in an internal magazine of the defendant, known as Law Dog. This was an article on Lee Formica in the 4 August 2003 edition of the intra-office magazine.
87 The plaintiff gave evidence that she objected to and was undermined by a part that appeared in the article. The offending part was and appears at page 165 of the Jury Book, Exhibit B in this proceeding. The section the plaintiff took as undermining her is:
“While Lee was a partner at Wisewoulds, Fiona Brown began work there as a young solicitor. When John Cain approached Lee to come to Maurice Blackburn Cashman, Lee felt it was not the right time for a move but recommended Fiona. Fiona has since built up the Family Law Department into the success that it is now. Lee later joined us too, initially as a consultant three days a week. Lee worked full-time while Fiona was on maternity leave. She now works four days a week in the office and puts out “bushfires” from home on the fifth day. Most of her work is property settlements and pre-nuptial and cohabitation agreements, with some children’s work as well.”[38]
[38]Exhibit B, page 165
88 In evidence, the plaintiff said:
“A: It didn’t really upset me. It – given that I was a partner as well, I didn’t believe that it was necessary to put in what she said about how I got my job.”
89 At a later stage in her evidence, she was asked this question:
“Q: Can you explain to the court how it was that this article could possibly be said to have put you down?
A: Because it made Lee appear more senior to me and that she had basically given me the job, or not given me but - had not taken the job at Maurice Blackburn and given it to me.
Q: Where does it say any of that?
A: And that obviously she was more senior to me at Wisewoulds and I was a young solicitor.
Q: Was that true?
A: Yes but it didn't need to be written in an article like this.”[39]
[39]T 453
90 I do not accept that the section of the article in Law Dog referred to by the plaintiff had the imputation that Ms Formica was seeking to advance herself and undermine the plaintiff. The plaintiff clearly accepts that the contents of that paragraph are factually correct. The article is an internal publication. It also positively reinforces the success that the plaintiff had become in the Family Law Department of MBC. This allegation does not assist the plaintiff’s claim in this case.
(9)The allegations set out in paragraph 5 (f) and (g)/”Declaration of War”
91 The allegations set out in the Statement of Claim in respect of this matter are as follows:
“(f) In early or mid August 2003, Formica (who had been appointed a salaried partner on 1 July 2003) verbally threatened the plaintiff by alleging that the partners of MBC wanted to play one off against the other so that one of them would leave:
(g) From the date of the verbal threat in early mid-August 2003 onwards, Formica avoided talking with the plaintiff to the fullest extent possible despite their offices being adjacent:”
92 During the course of the evidence in this case, this issue became pivotal to the plaintiff’s claim.
93 In the Opening for this case (at that time before a jury) Mr Tree SC for the plaintiff stated that”
“There was in effect a ‘declaration of war’ between Ms Formica and the plaintiff. The conversation was alleged to have taken place after Ms Formica was made a salaried partner of the defendant law firm on 1 July 2003.”[40]
[40]T 43
94 At a later stage in the opening address “the declaration of war” was alleged to have occurred on 11 August 2003.[41] The allegation of “declaration of war” was a provocative and emotional allegation made by the plaintiff against Ms Formica. Mr Tree SC for the plaintiff, went on to conclude in his opening on this issue as follows:
“ … you can imagine the effect that that has upon someone who is being told that by a fellow partner [Ms Formica], that in effect, the war's now on, it's a fight to our career death, effectively.”[42]
[41]T 66
[42]T 38
95 The submissions of counsel are not evidence in the case. However, this submission in relation to the “declaration of war” set the tenor for the conduct of the case and the basis upon which the plaintiff sought to establish the harassment, intimidation and threatening behaviour of Ms Formica.
96 The plaintiff’s evidence on the issue of the “declaration of war” is less dramatic. The plaintiff gave the following evidence:
“Q: Do you have any recollection of any conversation with her about the attitude of other partners to you?
A: Yes.
Q: Can you tell His Honour, please, to the best of your recollection what you remember of that conversation?
A: It was early August, I can't remember the particular date, but it was after the law dog article.
Q: Law dog being the article that you saw in relation to Ms Formica?
A: The article, yes, yes.
Q: Yes?
A: And she came to my office which I was surprised about because normally she didn't really come and speak to me and she just stood at the door and I was sitting there, you know, had been doing some work and she just said to me, ‘You know the partners are trying to play us off against each other so one of us will leave’. And I said, words to the effect of, you know, ‘What? What are you talking about?’ and she said, ‘Yes, it's true,’ and I said, ‘What makes you think that?’ and she said, words to the effect of, something she knew and she'd heard around the traps and that was pretty much all she said. She said, ‘I'm just making you aware of it’.
HIS HONOUR: Sorry, I just want to get this clear. I know there will be transcript but ‘You know the partners are playing us off against one another’?
A: Yes.
Q: ‘And one of us will’ ‑ ‑ ‑?
A: ‘They want one of us to leave’. ‘So one of us will leave,’ words to that effect, Your Honour.
Q: Meaning ‘they’ the partners?
A: Yes.
Q: ‘One of us to leave’?
A: Yes.
Q: And then you asked her what that was about, why she's thinking that?
A: Yes.
Q: And she says just things she'd heard around or something like that?
A: What she'd heard around the traps.
Q: Yes, thank you. And then she said, ‘I just want to make you aware of it’?
A: Yes.
Q: She's warning you?
A: Yes.
Q: That they're either after both of you or one of you?
A: Yes.
Q: ‘They’ being the equity partners?
A: Yes.
MR TREE: Can you tell His Honour, please, your response to that conversation, how it made you react?
A: Shocked again. Anxious. Disbelief really.
Q: At what? What was the disbelief?
A: That, firstly, she'd come and say something like that to me and, secondly, I didn't - I'd had no inkling that it was true.
Q: Did you interpret it as conveying any hostility from her to you?
A: Well, she was trying to say it to me in a sort of friendly way as if she was letting me know something. But really it was letting me know that, you know, we were both fighting for our careers.
Q: Fighting whom for your careers?
A: Each other and the partnership, the firm.
Q: Did you feel any sense of threat from Ms Formica in relation ‑ ‑ ‑?
A: Yes, yes.
Q: In what sense?
A: Well, she's telling me about it so she's putting me on notice that we'll have to fight and so therefore it was threatening to me.
Q: Who was going to have to fight?
A: She and I to keep our jobs. It was going to be competitive.
Q: Did the anxiety that you felt in consequence of that last for any duration?
. A: Yes, it would have. I mean, I was already not as comfortable in the office as I'd been before I went on maternity leave. I was ‑ ‑ ‑“[43]
[43]T 186, L22 – T 188, L20
97 The evidence given by the plaintiff at this time was her interpretation of what the words she alleged Ms Formica uttered actually meant. If I was to accept that this conversation took place between the plaintiff and Ms Formica, a proper interpretation would be that Ms Formica was in effect warning the plaintiff that the equity partners were seeking to reduce the salaried partners to one in the Family Law Department. If Ms Formica actually said these words with the intent and interpretation that the plaintiff placed upon them, it would be unlikely that Ms Formica would be putting the plaintiff on notice about the equity partners’ intentions.
98 The plaintiff’s evidence was that she thought the approach by Ms Formica in respect of the threat and the statement about the partners wanting one of them to leave was between 4 and 12 August 2003.[44]
[44]T 193
99 The plaintiff, in her evidence, stated that she had kept file notes on meetings and incidents which occurred during 2003 at the defendant’s premises. She stated that she had kept the notes from the May 2003 meetings onwards in a drawer at her desk at work. In her evidence, she said of the file note in respect of the “declaration of war” incident as follows:
“Q: You were challenged in relation to the meeting with Ms Formica in which she came into your office and asked you whether you were aware that the partners were playing you off against each other and so forth?
A: Yes.
Q: Did you keep a file note in relation to that?
A: I did write something on it, but I can't find it. But I certainly refer to that in my meeting with Michael.”[45]
[45]T 511, L9-15
100 The plaintiff was a careful record keeper and I find that it would be extraordinary for the plaintiff to have lost such a critical piece of contemporaneous documentation as the note she describes in her evidence if it existed. On her evidence, it is the only piece of her file notes that she could not find. Given the significance that the plaintiff attached to allegation of a “declaration of war”, I do not accept that she made any such file note.
101 In this case, Ms Formica gave evidence. On the “declaration of war” allegation, she was clear and adamant that no such conversation or encounter occurred between herself and the plaintiff. In cross-examination of Ms Formica, the following exchange took place:
“Q:Certainly there was scrutiny at the department as we know in early 2004?
A: That's right. There wasn't in 2003, as far as I was aware.
Q: But you were aware that the firm was changing, that it was evolving from being essentially a union referral firm to having a focus on major projects and class actions?
A: At that stage I was told, as was Fiona, that the firm was committed to family law, that they wanted us to do well and wanted us both as partners to build up the department.
Q: Wrongly or rightly, you formed the view, didn't you, that the partners were indeed, playing you and Ms Brown off against each other?
A: That's not correct.
Q: And you, in about the early to mid August of this year, went into Ms Brown's office and said to her, "You realise the partners are playing us off against each other, don't you"?
A: Is that a question?
Q: Yes?
A: No, I never said that.
Q: To which she said, "Well, what do you base that on?" And you said, "Well, I've just heard it around the traps"?
A: No.
Q: You are aware, are you not, that Ms Brown's evidence is that she raised that with Michael Brett-Young on 18 August in a meeting she had with him?
A: I heard that evidence.
Q: And no doubt you heard the cross-examination of Ms Young (sic) which accepted that that is what she said?
A: I'm sorry, can you say that again?
Q: Ms Brown, sorry. No doubt you heard the cross-examination of Ms Brown which appeared to accept that what she said in that regard was truthful?
A: I disagree that that conversation took place.”[46]
[46]T 929, L15 – T 930, L12
102 Ms Formica’s evidence was clear and unequivocal on this point.
103 The plaintiff also gave evidence that she had made a complaint to Michael Brett-Young, the managing partner of the defendant, about the alleged statement by Ms Formica that the partners were playing the two of them off against one another. Mr Brett-Young’s evidence was that he agreed such a statement had been made by the plaintiff to him. I do not accept that a complaint by the plaintiff to the managing partner, Michael Brett-Young, is corroborating the fact that the conversation took place between herself and Ms Formica. The plaintiff is the only source of this allegation.
104 I prefer the evidence of Ms Formica on this issue. I accept that Ms Formica’s evidence that there was no conversation between the plaintiff and herself about the partners playing the two of them off against one another until one of them had to leave the firm. I find that there was no “declaration of war”.
105 The allegation set out in paragraph 5 (g) above is not supported by the evidence. It is clear from the whole of the evidence in this case that the members of the defendant firm communicated by email. The fact that their offices were adjacent did not make any difference to that method of communication. At the time in August 2003 the plaintiff was working three days a week and Ms Formica was working four days a week. In effect, they were only at work on two, or three, days in common each week. Further, the evidence reveals that around this time in August of 2003, both the plaintiff and Ms Formica had leave entitlements which they exercised. I note that there was no evidence from the plaintiff saying that she had actively sought out communication with Ms Formica during this period. Given that she was the Head of the Family Law Department, then communication was part of her role. I do not accept that this allegation is made out.
(10) The allegation set out in paragraph 5 (h) of the Statement of Claim
106 The plaintiff alleges that Ms Formica intimidated her by sending an email on 12 August 2003. Paragraph 5 (h) of the Statement of Claim alleges:
“5(h) By email on 12 August 2003 Formica intimidated the plaintiff by unjustifiably alleging that the plaintiff had failed to keep her informed regarding relevant office matters;”
107 The email correspondence between the plaintiff and Ms Formica on 12 August 2003 consisted of three emails. The emails were tendered in evidence and appeared at pages 167, 168 and 169 of Exhibit B, the Jury Book.
108 It is appropriate to set out the contents of the relevant emails. The first email is from the plaintiff to Ms Formica at 9.16 am. The email reads as follows:
“As you all know by now Gerogie has resigned and her last day is Friday 29 August. Lisa Bradley (Articled clerk) is going to join our department on about 25 August. Lisa is currently working with Liberty in workcover, she is very keen to be involved in our department. Jonathan wil be transferring to help out in personal injuries departments in about 2 weeks. We will have a big department lunch in Georgie’s last week to farewell Georgie and Jonathan and welcome Lisa before I go on leave on the Thursday.
Thanks!
Fiona Brown”[47]
[47]Exhibit B, page 167
109 The email from Ms Formica which the plaintiff alleges intimidated her was sent in reply to that email at 10.19 am. The email reads as follows:
“Fiona – you’re supposed to be COMMUNICATING with me. This is precisely the issue that I have now raised a few times with you to which you pay lipservice. I don’t expect to be told things by email along with other staff members when I am your partner. If you don’t think you can manage to talk to me by phone or mobile if you can’t catch me in the office because you’re instructing or at home. etc. I think we’ll need to discuss it with MBY. I am not happy.
Lee Formica”[48]
[48]Exhibit B, page 168
110 This email is clearly Ms Formica saying that she has not been communicated with in relation to staffing matters within the Family Law Department of MBC. In effect, Ms Formica is saying that she is not receiving any communication from the plaintiff.
111 The plaintiff responds to Ms Formica’s email at 6.00 pm.
“Subject: Re: Department changes
Lee
I have just returned from Court to your email.
I am more than aware that you are you are (sic) my partner and issues of concern to the department need to be discussed. This has generally been my policy at all times and your title change has not affected how I have valued your input.
I am still the Head of this department as was confirmed to me by MBY before I returned from maternity leave.
The email I sent today was an administrative social email merely reporting to the department on issues already known to them all and to you. Nothing was new to you. It was therefore not an email which I considered needed your prior approval or input. If it was, I would have discussed it with you when we were both here or sent it to you as a draft.
It is most unfair of you to say that I pay lipservice to you when it was you who bought me flowers 2 weeks ago after I received barrage of other upsetting emails from you.
I will discuss this with you with MBY on Thursday as he is interstate tomorrow.
Fiona Brown”[49]
[49]Exhibit B, page 169
112 The email sent by the plaintiff to Ms Formica at 6.00 pm on 12 August 2003 clearly sets out the plaintiff’s position and reaction to the email from Ms Formica. I find there is no indication in that email that she is intimidated in any way by Ms Formica. The plaintiff in her responding email is asserting her role and authority as head of the Family Law Department to Ms Formica.
113 In her evidence on this matter, the plaintiff did not say that she was intimidated by the email from Ms Formica. The following evidence was given.
“Q: No doubt you're familiar with Ms Formica's response at p.168?
A: Yes.
Q: What do you say in relation to the allegation of a failure to communicate with Ms Formica in relation to the matters in your email?
A: I believe she was being very petty about it, I was the head of the department, there was nothing new in the email I was circulating to the department and I said that to her in a subsequent email.[50]
[50]T 194, L 9
114 The plaintiff’s view of that email exchange was that Ms Formica was being petty. A fair reading of the email sent by Ms Formica does not support the allegation that her email set out on page 168 of Exhibit B intimidated the plaintiff in any way. The plaintiff response to Ms Formica is one of annoyance and asserting her position as head of the Family Law Department at MCB. I find the plaintiff was not intimidated by the email from Ms Formica dated 12 August 2003.
(11) The allegation set out in paragraph 5 (i) of the Statement of Claim
115 The allegation set out in the Statement of Claim is that Ms Formica failed to respond to an email from the plaintiff dated 15 August 2003 concerning administrative arrangements within the Family Law Department of MBC. The email appears in Exhibit B at page 169B. There was no evidence to substantiate the alleged omission by Ms Formica. There was no evidence that the plaintiff thought that her authority was undermined as a result of that email and the non-response by Ms Formica.
(12) The allegation set out in paragraph 5 (j) of the Statement of Claim
116 The background to this allegation is that Ms Formica organised, by way of email dated 5 September 2003, for a department meeting to be held on 10 September 2003. At the time of the email the plaintiff was still on holidays. The plaintiff was to return from holidays in the week following 5 September 2003. The meeting of 10 September 2003 was chaired and conducted by the plaintiff.
117 The allegation set out in the Statement of Claim is as follows:
5 (j) “By email of 5 September 2003, Formica unjustifiably undermined, abused and humiliated the plaintiff by organising a Family Law Department meeting without discussing the agenda, timing or approval of the meeting from the plaintiff and whilst the plaintiff was on leave;”
118 It is appropriate to set out the contents of the email.
“From: Lee Formica
To: Brian Leaver, Fiona Brown, Lisa Bradley
Date: 9/5/03 11:17am
Subject: meeting
Before Fiona’s diary books up on her return Monday we should have a meeting to “consolidate” our new look dept. On the agenda for discussion:
work for Lisa –
current workload for each of operator and how we’re managing
compiling superannuation precedents and role for Lisa
any superannuation information we can exchange which will assist us even more with preparing our cases including any memos from Counsel
child support departure application precedents
marketing
timetable for further meetings
general business
We all seem to be free for Wednesday 10/9 so let’s make it lunch – BYOL in once of the conference rooms. Please diarise.
Lee Formica
DISCLAIMER
…
CC: Kate Watts”[51]
[51]Exhibit B, Jury Book page 171
119 Kate Watts is the personal assistant to the plaintiff at the defendant firm.
120 The plaintiff in her evidence stated as follows:
“Q: What do you say to the convening of a meeting by Ms Formica and the identification of agenda items on it, was that part of her responsibility?
A: No, and she sent this email while I was still on leave.
Q: Whose responsibility would it ordinarily have been to convene a departmental meeting and to establish the agenda for discussion at that meeting?
A: Mine.
Q: Can I then direct your attention to the last paragraph, please. "We all seem to be free for Wednesday 10 September so let's make it lunch." Firstly, were you aware when you saw this email as to the time that was proposed for the 10 September meeting with Mr Brett-Young?
A: Well, I'd seen that when I got into the office.
Q: Was that before or after the lunch-time meeting that Ms Formica was ‑ ‑ ‑?
A: My meeting with Michael and Lee was scheduled for the morning.
Q: Did you have any view in relation to Ms Formica having convened a departmental meeting for immediately after - or sorry, for the lunch after the morning meeting with Mr Brett-Young?
A: I thought it was inappropriate.
Q: Why?
A: Because I had no knowledge of what was going to be discussed in the meeting with Michael and for her to arrange a department meeting two or three hours after that, I felt very uneasy about.
Q: Uneasy why?
A: Because I was in the dark. I didn't know what was going to happen in the meeting in the morning. I had a fear that things were going to be said to me that were going to be very upsetting for me and to then to have to pull myself together and have a department meeting a couple of hours later that she arranged, was very undermining and inconsiderate.”[52]
[52]T 203, L2 – T 204, L1
121 Ms Formica was asked about the reasons for sending the email to organise the meeting for when the plaintiff returned to work. Her evidence was as follows:
“ MR STANLEY: Can you look at p.171 please. This is an email from you to Brian Lever and Lisa Bradley who I understand were two solicitors in the department and also to Fiona Brown?
A: Yes.
Q: It was sent on 5 September ‑ ‑ ‑?
A: Yes ‑ ‑ ‑.
Q: - - - on a day when Fiona was still on holiday leave?
A: Yes.
Q: What was the purpose of sending that email? Perhaps it speaks for itself but ‑ ‑ ‑?
A: Yes ‑ ‑ ‑.
Q: Is there any ‑ ‑ ‑?
A: I think Fiona had been on leave and we'd lost Georgie and Chris by this stage so I just thought it would be a good idea when Fiona came back that we had a meeting set up as quickly - during that week, as quickly as we could just to get ourselves organised. I referred to it as - consolidate our new look department because there were less of us and then when Fiona came back she chaired the meeting.
Q: In doing that did you see yourself as usurping Fiona's role as head of the department?
A: Not at all. We were partners and as things came up you have an element of fluidity and I just certainly didn't think that she would be offended by that.”[53]
[53]T 837, L30 – T 838, L19
122 It is clear from Ms Formica’s evidence that she thought she was just assisting in the transition from one group of staff within the Family Law Department to the new and ongoing group.
123 I find there is no objective basis for a finding that the plaintiff was undermined, abused or humiliated by Ms Formica taking the initiative and organising for a meeting to be chaired by the plaintiff upon her return to work from leave.
(13)The allegation set out in paragraph 5 (k), (l), (m) and (n) of the Statement of Claim
124 The background evidence to these allegations is that Ms Formica had been seeking resolution of what would be described as the “costs issue” from the plaintiff and Michael Brett-Young. Ms Formica was seeking what she thought was her share of the costs of files that she supervised whilst the plaintiff was on maternity leave. This also included the files that were conducted by Georgina Presnell (Gregory) whilst the plaintiff was on maternity leave. Ms Formica was seeking the costs on the basis that she was supervising those files conducted by Ms Presnell. On 9 September 2003, Ms Formica emailed the plaintiff concerning this costs issue and suggesting that it could be resolved by Michael Brett-Young.[54]
[54]Exhibit B, page 174
125 The plaintiff’s response on the same date was very simple:
“I don’t have a problem.”[55]
[55]Exhibit B, page 175
126 It is appropriate to analyse these four allegations of intimidation, undermining, humiliating, harassment and/or bullying together. The total email correspondence runs for the period 25 September 2003 to 26 September 2003. The emails tendered in evidence were contained in the Jury Book, Exhibit B and appeared as follows:
(i)23 September 2003 at 3.38 pm – Lee Formica to Fiona Brown, cc Kate Watts and Martine Osborne[56]
(ii)23 September 2003 at 5.06 pm – Fiona Brown to Michael Brett-Young[57]
(iii)24 September 2003 at 8.40 am – Fiona Brown to Lee Formica[58]
(iv)24 September 2003 at 9.48 am – Lee Formica to Fiona Brown[59]
(v)26 September 2003 at 12.46 pm – Lee Formica to Family Law Department[60]
(vi)26 September 2003 at 4.28 pm – Lee Formica to Kate Watts[61]
[56]Exhibit B, pages 176 and 177
[57]Exhibit B, page 178
[58]Exhibit B, page 179
[59]Exhibit B, page 180
[60]Exhibit B, page 196
[61]Exhibit B, page 196A
127 The first email is from Lee Formica to the plaintiff. The email is clearly about the issue of costing of files. The email sets out Ms Formica’s request for an apportionment of the costs to her for work performed or supervised by her on the nominated files whilst the plaintiff was on maternity leave. Ms Formica was requesting a meeting with the plaintiff to resolve the issue. The support staff, Kate and Martine, had the billing information. Each of the support staff were copied in on this email.
128 The plaintiff alleged the email is unjustifiably harassing her about delaying the resolution of the costings on the files. The plaintiff also alleged that she was humiliated because the other staff, that is Kate and Martine, were sent the email. The full text of the email is set out on page 176 of Exhibit B. It reads as follows:
“From: Lee Formica
To: Fiona Brown
Date: 9/23/03 3:38pm
Subject: costing of files
Hi Fiona,
We need to sit down and calculate the apportionment of files for billing. Off the top of my head I worked on the following:
[Name] – already billed and costs divided between Fiona and georgie. Nothing to me.
[Name] – same
[Name] – same
[Name] – same
[Name] – same
[Name] – need a status report
[Name] – I expect billing for what I and Georgie did first half of this year. I’m not accepting 25% of Georgie’s rate. Therefore please provide me with bill before it is finalised.
[Name] – where is it at?
[Name] – has it been billed?
the maltese guy whose name escapes me –
there are others which I can piece together form my diary for the first 5 months of this year.
I also worked on other files during fiona’s maternity either directly or indirectly thru Georgie. Again off the top of my head they were:
[Name]
[Name]
[Name]
[Name]
[Name]
and others that will come to me.
At the very least they should be credited to me and not Fiona for obvious reasons. The simple scenario is if you’re at work you bill and if you’re on leave you don’t!!!!
Please provide me with up to date status reports for these files to begin with.
I don’t know why this matter keeps dragging on.
Can we organise a meeting for next week? Kate and Martine will have all the billing info so we can resolve it quite quickly.
thanks
Lee”
[I have not set out the actual names of the clients of MBC in these reasons]
129 The contents of the page 176 email are not in the nature of an harassing email. A plain reading of the email sets out the subject matter and the issue raised in the email. It then sets out a proposal for the resolution of the costings of the files issue. I find that the email cannot reasonably be described as harassing.
130 The plaintiff alleged that she was humiliated by the fact that Ms Formica had sent a copy of the email, page 176 of Exhibit B, to the personal assistants, Kate Watts and Martine Osborne. Ms Watts gave evidence that she could not remember any issue in relation to Georgie Presnell’s billings.[62] I find that as far as Ms Watts was concerned, this “billing issue” was of no significance and not remembered by her. Ms Osborne did not give evidence.
[62]T 761, L10-11
131 The plaintiff, in her evidence, stated that she thought it was inappropriate that the administrative staff were copied in on this email. The plaintiff stated:
“A: I thought it was inappropriate. It should have been between her and I and had nothing to do with admin staff and it was alerting them to issues they didn't need to know about.”[63]
[63]T 213, L21-24
132 The plaintiff did not give any evidence that she was humiliated, harassed by this email.
133 Ms Formica gave evidence on the reason for her sending the email to the plaintiff and the support staff as follows:
“Q: What was your purpose in writing that email?
A: To start focusing on what we needed to discuss, so the initial email was just about the fact that there was a billing issue that we needed to talk about and this one was giving her, giving Fiona some understanding of what the files were that I wanted to talk to her about.
Q: So you were proposing a meeting with her about these files?
A: Yes, and I had even cc'd our personal assistants because they're so intrinsically involved in all the billing parts that I thought it would make it easier if our assistants got the information together and then we would have it to discuss over a coffee or lunch or something.
Q: What do you say as to the response that - or the view that it was totally inappropriate for you to cc that email to the assistants, your assistant and Fiona's assistant?
A: Well, we were partners in a law firm and our personal assistants were our right hand people, they knew everything that happened on our files, particularly administratively, so they knew how to print off these sorts of things, I wouldn't know how to do it, Your Honour. They are very computer literate and they could have put it all together for us.
231 The plaintiff visited Ms Gregory in the early part of 2004 after Ms Gregory’s father had passed away. The plaintiff had come to the family home to offer her condolences to Ms Gregory. Ms Gregory described her as being her normal self.[105] This is evidence that the plaintiff, even after she had left work at MBC, was still functioning at a normal level and appeared to a person who had worked with and knew her well, to be normal.
[105]T 641
232 I found that Ms Gregory was a very credible witness. She was even handed and balanced in the manner in which she gave her evidence in respect of both the plaintiff and Ms Formica. A fair summary of her evidence would be that she was aware that there was a falling out between the two partners of MBC. She was aware that they had been long term and good friends. The symptoms and signs of any mental stress or injury to the plaintiff were absent and not observed by the witness Gregory either before she left MBC or after.
233 Kate Watts gave evidence on behalf of the plaintiff. Ms Watts had commenced her employment at MBC in 1999. She ceased work at the defendant law firm in June of 2004. During the course of her time whilst the plaintiff was at MBC, she was the personal assistant to the plaintiff. Ms Watts described the plaintiff as a very good boss. She was fun and very dedicated. Ms Watts stated that she thought Ms Formica and the plaintiff got on very well before the plaintiff went on maternity leave. Ms Watts described the year 2003 as:
“It was a little bit stressful.”[106]
[106]T 757
234 Ms Watts could not remember sending the Formica emails to the plaintiff at around about the time immediately before her return from maternity leave. Ms Watts’ evidence was that she thought the plaintiff:
“… became very withdrawn from everybody.”[107]
[107]T 761
235 Ms Watts gave evidence that she continues to be in contact with the plaintiff. She said that when she last observed the plaintiff at the airport, that she did not think the plaintiff was as happy-go-lucky as she used to be. Ms Watts was not cross-examined by Mr Stanley for the defendant. Ms Watts gave no evidence about her attendance at the Oaks Day cosmetics party. I conclude that Ms Watts’ recollection of events in 2003 was somewhat vague and incomplete. I accept her evidence that her perception was that the plaintiff had become more withdrawn during the course of 2003. I do not find that that perception can be reasonably transferred to other members or partners of MBC.
The DVD surveillance film of the plaintiff for 24 to 26 August 2009 / Exhibit H
236 In the course of this case, the plaintiff’s counsel showed DVD surveillance film of her. The DVD surveillance films had been commissioned and taken on behalf of an insurer related to this case. It was submitted that the purpose of showing the video surveillance film to me was to display the serious demeanour of and flat affect that the plaintiff shows now in 2009.
237 It is appropriate to divide the DVD surveillance films into the “walking to and from school” type surveillance and the “café” surveillance. I have viewed the film. I find that there is nothing exceptional about the manner in which the plaintiff walks to and from school with her children, or indeed driving around and conducting other activities during the course of the surveillance. I find that the interaction between the plaintiff and her children on the way to school is as best can be told, a normal interaction as they are walking along the street and/or playing in the park on the swing.
238 The film of the plaintiff in the café ran for a considerable time. In the film, I was unable to see with whom she was sitting at the table other than her youngest child. Obviously there was no audio, so the content of the conversation that the plaintiff was involved in was not apparent. The film showed the plaintiff conversing with the unseen party, eating a muffin and otherwise interacting with her child. Whilst her general demeanour was serious, there were occasions when she smiled and to my observation she was certainly interacting with her youngest child.
239 Ms Gregory had been shown the DVD of the café. She was asked to give her opinion of a comparison between how she remembered the plaintiff and what was shown on the DVD. Her evidence was as follows:
“Q: Are you able to make a comparison between your recollection of her at lunch as a lunch partner with what we see in that video?
A: She looked very serious and distracted and quite unhappy in that video.
Q: Do you have a recollection of her being like that in lunches with you?
A: No.
Q: Anything resembling that?
A: If there was something on her mind she might, she might have been more serious but normally she was very friendly and a positive person.”[108]
[108]T 634, L16-24
240 The plaintiff called Melissa Marcus. Ms Marcus is a member of the Victorian Bar. She has chambers near to Mr Peter Tree SC, Counsel for the plaintiff. Ms Marcus stated that she knew the plaintiff from her time at Tasmania University Law School. This was in the early 1990s. Ms Marcus stated that the plaintiff was a very bubbly and outgoing friendly person when she was a student. She had been shown the DVD footage of the plaintiff whilst in the café. Ms Marcus’s evidence was as follows:
“Q: Can you make any comparison between what you saw in that - accepting that this is 20 years on, and what you remember her as being?
A: The video footage that I saw of Fiona in the coffee shop was absolutely nothing like the Fiona Brown I recall from law school. In fact, it was such a stark contrast it made me very sad to see it.
Q: What did you identify as the change?
A: Just the sadness, the look of sadness, you know, the video footage I saw of Fiona sitting there with a small child and seemed to be lost in the distance and just looked terribly terribly sad. It's not a recollection I have of her from law school.”[109]
[109]T 646, L23 – T 646, L3
241 I did not find Ms Marcus’s evidence very helpful in deciding any issues in this case. In summary, she said that she was not a friend of the plaintiff and had not seen her for approximately twenty years. Her evidence was simply her interpretation of what she observed on the DVD. It was of no assistance to me. I disregard her evidence.
242 The DVD surveillance film of the café was shown to both Ms Hosking and Ms Field, psychologists. I will deal with their evidence on the issue of the DVD when reviewing their evidence.
243 I conclude that the plaintiff is shown on DVD surveillance in 2009 as a mother walking her children to school. The plaintiff does display a serious manner. I do not find anything so demonstrably compelling about that part of the surveillance film. The “café video” shows the plaintiff in the same serious demeanour but also there is interaction with her child, her unseen companion in the café and people in the café. I do not conclude she is wary or ill at ease.
The Medical Evidence
244 In this trial, evidence was called from four medical practitioners and two psychologists. There were a large number of medical reports tendered which were prepared by other medical practitioners including psychiatrists and general practitioners. A reasonable conclusion, after examination of all the medical opinions in this case, is that the plaintiff is suffering from significant depression with associated anxiety features.
Dr Gillian Taylor
245 The first medical practitioner that the plaintiff consulted in respect of her complaints about stress in the workplace was Dr Gillian Taylor. Dr Taylor was a general practitioner working at the Hampton Bayside Medical Centre. The plaintiff first consulted Dr Taylor about the stress issues on 15 August 2003. The plaintiff consulted Dr Taylor principally for a gynaecological condition. The plaintiff, at the end of the consultation raised the complaint of stress and lack of sleep she was having due to pressures at work and interpersonal conflict with a colleague. Dr Taylor prescribed Temaze to assist with the sleeping difficulty.[110] Dr Taylor stated in her evidence that she had suggested as a strategy for the plaintiff that an outside mediator might be involved in the dispute.
[110]T 657
246 Dr Taylor referred the plaintiff to Sue Hosking, psychologist, on 17 October 2003. On 12 November 2003, Dr Taylor issued a WorkCover certificate for the plaintiff. Dr Taylor’s evidence was that after this period of time, in November 2003, she basically saw the plaintiff on a monthly basis up until April 2005. Dr Taylor stated that her therapeutic involvement was minimal as she had referred the plaintiff over to Sue Hosking, psychologist.[111] In short, Dr Taylor thought this issue was to be solved within the workplace rather than by way of medication.
[111]T 661
247 In April 2005, Dr Taylor was contacted by an insurance clerk from Zurich Insurance. Dr Taylor was ambivalent about the plaintiff returning to work at that stage. However, she changed the WorkCover certificate in order to facilitate some rehabilitation for the plaintiff so that she could return to work. It was at this time that Dr Taylor ceased to be the general practitioner. Sue Hosking, the psychologist, referred the plaintiff onto to Dr Colahan.
248 Dr Taylor’s evidence was that she thought that the symptoms the plaintiff was complaining about between August and October 2003 could possibly be consistent with post natal depression. However, she was not happy with a diagnosis of post natal depression because there were no signs of any difficulty with the relationship with her baby. Dr Taylor’s opinion was that the post natal period may well have increased the plaintiff’s vulnerability to having work stress.[112]
[112]T 672
249 Dr Taylor’s evidence was that she was basing her opinion on one side of the story; ie, the plaintiff’s version of what was occurring at work. She proffered in her evidence that it was clear there were two highly stressed women who were unhappy in the workplace.[113]
[113]T 681
250 Dr Taylor was a sensible and practical medical practitioner who expressed concern about the nature of work practices for women with children working in a legal practice. Whilst her evidence is that she was not involved in the therapeutic process in any real sense, the fact that her involvement with the treatment of the plaintiff finished in April 2005 was not necessarily in the interests of the plaintiff.
Dr Sally Chapman
251 Dr Sally Chapman became the general practitioner for the plaintiff when she moved to Tasmania in approximately 2008. Dr Chapman saw herself as the adjunct general practitioner to Dr Colahan in Brighton, Melbourne. Her evidence was she did not know the name of the general practitioner in Melbourne. It was clear from Dr Chapman’s evidence that there was no communication between her and the treating general practitioner, Dr Colahan or Sue Hosking in Melbourne. Dr Chapman’s final consultation with the plaintiff was on 25 July 2011.
252 In the course of her treatments and consultations with the plaintiff, Dr Chapman was advised by the plaintiff that she was taking Thyroxine. On the final consultation with the plaintiff, Dr Chapman advised her that her blood tests showed that she had normal thyroid.[114] Dr Chapman had a history from the plaintiff that she had consulted a Dr Gregory Schwartz, a general practitioner, who was involved in complementary medicines in Hobart and had subsequently moved to Germany. Dr Schwartz had suggested that the plaintiff could be suffering from “adrenal fatigue”. The plaintiff had also seen a Dr Russell Cooper, who is a well known Australian figure in medicine and complementary medicine. The plaintiff had been to see Dr Cooper in order to have blood tests taken and sent to Greece to be tested for cancer. The evidence was that the plaintiff did not suffer from cancer.
[114]T 739
253 Dr Chapman, in the course of her treatment, had prescribed the plaintiff with Zoloft for depression and Xanax for anxiety. She changed the medication in March of 2010 from Zoloft to Lexapro and the plaintiff is currently on Pristiq. All of these medications are antidepressant medications.[115] At the conclusion of Dr Chapman’s evidence, it was clear that the plaintiff had sought a variety of medical practitioners in the complementary medical sphere over a number ailments. Dr Chapman gave evidence that Ms Brown was very involved in her treatment. Ms Brown requested a variety of medications which were complementary medicines but not pharmaceutical medications.[116]
[115]T 734
[116]T 740
254 Dr Sally Chapman’s reports dated 19 October 2009 and 12 January 2012, with their attached notes, were tendered and marked Exhibit T. I conclude that the plaintiff was very active in directing her treatment such as it was by Dr Chapman. Dr Chapman saw herself as being an adjunct general practitioner to Dr Colahan with whom she had never spoken.
Dr Greg White
255 Dr Gregory White is a psychiatrist. Dr White was engaged to assess the plaintiff on behalf of Tower Australia Limited, an insurance company. The assessment took place on 10 October 2007. His report was tendered and marked Exhibit R. Dr White gave evidence that the longer a patient was ill, the longer it took them to get better in terms of psychiatric injury. He maintained there was always room for hope.[117]
[117]T 686-687
256 Dr White stated that when he saw the plaintiff, she was seeing a general practitioner in Melbourne and a psychologist approximately each month. In his opinion, the ongoing cognitive behavioural therapy was of limited effect for the plaintiff. He thought that the treatment regime of coming to Melbourne with the complications of having children in Hobart and flights back and forth was adding to the stress on the plaintiff. In his opinion, the plaintiff needed medication and also needed to be seeing a psychiatrist.[118] In Dr White’s opinion, it was important for the general practitioner or the psychologist to give professional advice about when is the best time to see a psychiatrist.
[118]T 696
257 In his report dated 15 October 2007, Dr White diagnosed the plaintiff as suffering from major depressive disorder. He was of the opinion that the plaintiff required antidepressant medication and robust encouragement to set her in the right direction.
258 Dr White’s opinion, whilst dated back in 2007, seems to be consistent with the opinions of more recent medical examiners, in particular the treating psychiatrist, Dr Michael Davie.
Dr Michael Davie
259 Dr Michael Davie is the treating psychiatrist for the plaintiff. He first consulted with the plaintiff on 23 November 2009. His last consultation was 17 January 2012, approximately one month prior to the commencement of this trial. Dr Davie’s four reports were tendered as Exhibit S. When the plaintiff first attended on Dr Davie, she was taking antidepressant medication which had been prescribed by Dr Chapman. The medication was Sertraline.[119] At that time, the plaintiff was also taking medication known a 5HTP. The opinion of Dr Davie was that it never really got into mainstream psychiatric practice to use such a medication for the treatment of depression. In Dr Davie’s opinion the taking of 5HTP was not clinically relevant for the plaintiff. Dr Davie said that he had difficulty in getting the plaintiff to take medications which he prescribed. He went on to proffer a view that the plaintiff had strong idiosyncratic views about her condition.[120] Dr Davie was firmly of the opinion that the plaintiff was not suffering from Post Traumatic Stress Disorder. He agreed that the plaintiff was of the view that she did suffer from that condition.
[119]T 702
[120]T 715
260 Dr Davie, as the treating psychiatrist, has diagnosed the plaintiff as having significant depression with associated anxiety features. Dr Davie said that his opinion in relation to the plaintiff’s future ability to work could not be formulated until a further twelve months of treatment was undertaken by the plaintiff. Dr Davie also said that he had observed the plaintiff outside the context of his consulting rooms and described her as: “Just the same. Very sort of flat face with turned down mouth and grim, grim looking really.”[121]
[121]T 711
261 I conclude, based on Dr Davie and Dr White’s evidence, that the plaintiff indeed does suffer from depression with anxiety features. The plaintiff is being currently treated and the prognosis into the future for an improvement in her psychiatric condition is uncertain.
Sue Hosking
262 Sue Hosking (whose full name is Elizabeth Sue Hosking) is a qualified psychologist. She has been practising for some 35 years. The plaintiff was referred to Ms Hosking by Dr Taylor. Ms Hosking in her report noted that on 6 November 2003, the plaintiff described herself as feeling very anxious with problems with sleeping, concentration and memory and that she could not stop thinking about work. Ms Hosking took a further history that the plaintiff described herself as physically and mentally and emotionally exhausted and she was finding everything an effort and she felt a significant loss of confidence, self esteem and she could barely manage things day to day.
263 The symptoms complained of by the plaintiff to Ms Hosking on the first visit on 6 November 2003 are at odds with the manner in which Ms Gregory described the plaintiff as appearing at the Oaks Day, ie, the same day, at the cosmetics party. Ms Gregory described her as happy, bubbly and a good host. This is a stark and clear example about how medical opinions are heavily reliant upon the history and presentation by the patient/plaintiff. The plaintiff at that first consultation with Ms Hosking described the meeting which was to take place the next day with Michael Brett-Young as “He is apparently to mediate”.[122] Ms Hosking went on to note that Fiona felt that the relationship would not be resolved at that meeting.[123]
[122]T 517
[123]T 518
264 These notations by Ms Hosking are clear contemporaneous notes that the plaintiff knew the meeting of 7 November 2003 was to be in the form of a mediation between herself, Michael Brett-Young and Ms Formica. It also indicates that the plaintiff had little or no confidence that the relationship between Ms Formica and herself would be resolved. In other words, the plaintiff went to the meeting on 7 November 2003 with a negative attitude about the mediation process about to take place. This was consistent with her behaviour on the day where she did not say anything and walked out of the meeting.
265 Ms Hosking referred the plaintiff to Dr Colahan on 26 April 2005.[124] The referral letter is Exhibit L in the proceedings. This referral occurred at a time when Dr Taylor was seeking to get treatment for the plaintiff so that she could return to work. It is an unusual situation in this case where Ms Hosking, the psychologist, who the plaintiff had been referred to by Dr Taylor, was now in turn referring the plaintiff to a different general practitioner.
[124]T 532
266 Ms Hosking had treated the plaintiff from November 2003 until October 2011. Throughout the whole period of that treatment and whilst the plaintiff lived in Victoria, she never suggested that the plaintiff should be referred to a psychiatrist. I find on the basis of the other medical reports in this case, that the plaintiff’s psychiatric condition was deteriorating over this period and it was clear that the plaintiff would have been assisted by treatment from a psychiatrist. Ms Hosking’s explanation for this is that the plaintiff was breastfeeding and could not take medications prescribed by a psychiatrist.
267 Prior to giving evidence, Ms Hosking had been shown the video which is referred to as the “café video”. When Ms Hosking was asked questions about her observations on the DVD, she started crying and became distressed. I find that during the course of the long treatment given by Ms Hosking to the plaintiff that the relationship between the two women became very close. The closeness of the relationship I find diminished the amount of professional distance and impartiality that Ms Hosking was required to bring to the treatment of the plaintiff. In effect, Ms Hosking took on the history given to her by the plaintiff in an uncritical manner and the impartiality of her evidence was compromised as a result.
268 In October 2011, Ms Hosking referred the plaintiff to another psychologist, Ms Evelyn Field, for ongoing treatment. Ms Hosking was planning to retire from practise as a psychologist.
Ms Evelyn Field
269 Ms Evelyn Field gave evidence that she was a psychologist of some thirty years’ experience. She published her first book on bullying in 1999, called “Bully Busting”.[125] Ms Field stated that her understanding was that Sue Hosking was retiring and that the plaintiff needed another psychologist and someone who was prepared to come to Court and write a Court report.[126] She agreed with the proposition that it was a pre-condition of her engagement that she was to come to Court and provide a medico-legal report.
[125]T 595
[126]T 627
270 Ms Field disagreed with the proposition by Dr Davie, the treating psychiatrist, that “too many cooks spoil the broth”. Ms Field diagnosed the plaintiff with a condition of Post Traumatic Stress Disorder. Ms Field gave evidence that upon seeing the video of the café surveillance, she described the plaintiff as a shell of a mother.[127] Ms Field said her usual practice was to see a patient who complained of being bullied in a period of one to two years after the events of bullying.[128] In this case Ms Field sees the plaintiff approximately eight years after the alleged bullying.
[127]T 630/N
[128]T 630/O
271 Ms Field had a history from the plaintiff that Michael Brett-Young was colluding with Ms Formica during the course of the plaintiff’s maternity leave.[129] Ms Field was given a history that Ms Formica was a “nasty piece of work” by the plaintiff.[130] The plaintiff described her meeting with Michael Brett-Young at the Brown Cow as him attempting to bully her and force her out of employment.[131] Ms Field agreed that she had been given a history by the plaintiff that it was “sad to lose Sue, good to talk to.”[132]
[129]T 630/B
[130]T 630/C
[131]T 630/D
[132]T 630E
272 The overall impression I formed of the witness Field was that Ms Field put herself forward as having expertise in workplace bullying. Her approach to the treatment of the plaintiff outlined during the course of her evidence in the form of group therapy sessions and research projects was unhelpful to the plaintiff or the plaintiff’s case. I find that Ms Field’s evidence and approach to the plaintiff’s condition fell a long way short of appropriate professional objectivity and therapeutic treatment for the plaintiff.
273 Ms Field’s methodology of using a questionnaire, taking the plaintiffs answers to those questions and match the results to international research is not a methodology that provides a reliable basis for professional opinion. I do not accept her professional opinion and diagnosis that the plaintiff suffers from Post Traumatic Stress Disorder.
Other Medical Evidence
274 I have read the reports of Dr Rosie Colahan (Exhibit U), general practitioner.
275 I have read the reports of Dr P Reynolds dated 13 March 2008 and 21 October 2009 (Exhibit B).
276 I have read the reports of Dr Paul Korman, psychiatrist, dated 8 October 2009 and 22 December 2011 (Exhibit W). Dr Korman’s opinions rely upon instructions he took from the plaintiff from an affidavit. The affidavit referred to by Dr Korman was not part of the evidence in this case. It was submitted by Mr Tree S.C. on behalf of the plaintiff that Dr Korman’s evidence was the proof required on the issue of causation. In short, Mr Tree SC was submitting that the bullying or intimidating behaviour by Ms Formica and the lack of action on behalf of Michael Brett-Young were the cause of the psychiatric injury to the plaintiff. The findings I have made in respect of the alleged behaviour by Ms Formica and the lack of response to it by Michael Brett-Young, make a finding in this regard unnecessary. However, without the full detail and text which contain the history relied upon by Mr Korman, it is difficult to fully accept his opinion.
277 I have read the reports of Professor L Dennerstein dated 28 October 2011 and 30 January 2011. These reports are Exhibit X. Professor Dennerstein diagnoses the plaintiff with a major depressive disorder. Professor Dennerstein after examining all the other medical reports, was unable to say when the symptoms suffered by the plaintiff increased to meet the criteria of major depressive disorder. Professor Dennerstein, like all the other medical practitioners, relied upon and accepted the history as given to them by the plaintiff. The history given to Professor Dennerstein was consistent with the plaintiff’s evidence in this case. I have found on the whole of the evidence in this case that the plaintiff’s version of events is not accurate.
278 I have read the report of Dr N Rose dated 20 January 2004 and considered its contents. It is Exhibit Y in the proceeding.
279 I have read the report of Dr Nigel Strauss dated 18 May 2004. It is Exhibit Z in the proceeding. It is Dr Strauss who first makes this observation in respect of the plaintiff:
“It is interesting to note that last year she had reasonably high levels of anxiety and depression and one can possibly postulate that perhaps there was a post natal mood problem relevant to this case. In other words she may have suffered from high levels of anxiety and depression in a post partum sense but it is very difficult to decide upon this because there appears to be little doubt that she was under a good deal of work stress.”
280 Dr Strauss’s opinion in that regard is in accord with the concerns that Dr Taylor expressed in her evidence concerning the potential for post natal depression. Neither Dr Strauss nor Dr Taylor finally diagnosed the plaintiff with post natal depression at that time.
281 I have read the report of Dr Philip Cohen dated 18 April 2005. I have considered its contents. It is Exhibit AA in the proceeding.
282 I have considered the report of Dr Louise Seward dated 17 April 2007. It is Exhibit AB in the proceeding. Her diagnosis was consistent with the other medical practitioners; namely adjustment disorder with depressed and anxious mood.
Conclusion
283 On all of the evidence it is clear that the plaintiff now suffers from a psychiatric injury. I accept Dr Davie’s diagnosis that the plaintiff does not suffer from Post Traumatic Stress Disorder. Dr Davie’s diagnosis is the plaintiff is currently suffering a significant depression with associated anxiety features.
Credibility of Witnesses
The Plaintiff, Fiona Brown
284 I do not find that Fiona Brown was trying to deliberately mislead the Court. I accept that the plaintiff has a significant depressive illness. The plaintiff, for reasons not obvious on the evidence in this case, had formed the view or perception that Ms Formica and Mr Brett‑Young were trying to get her to leave her employment at Maurice Blackburn Cashman. It is through this perspective that the plaintiff has viewed and reacted to a number of trivial interoffice and interpersonal conflicts. These conflicts were in the form of email correspondence and conversations as previously determined in these reasons for judgment.
285 On occasion, there are times in the plaintiff’s evidence where she has exaggerated. I find that she exaggerated in respect of the amount of time spent with Georgie Gregory on work at her home during the course of her maternity leave.
286 On other occasions, the plaintiff downplayed the significance of events in her life. Examples of this were the cosmetics party at her home on Oaks Day 2003. The plaintiff also downplayed the impact of the incidents relating to the complaint against her at the Law Institute, the dispute with the builders over the renovation of her home in Hobart, the neighbourhood dispute in respect of the cutting down of a tree and the effect of the dispute her husband had with a parent from the children’s school. In short, the plaintiff had focussed completely all of her difficulties on what she perceived to be the injustice meted out to her whilst being employed at the defendant’s law firm in the year 2003. The plaintiff’s perception of this is not justified on the evidence.
Lee Formica
287 Ms Formica was a salaried partner at the defendant law firm from 1 July 2003 and onwards. Prior to that time, she had been acting as a consultant at that firm.
288 In her evidence, Ms Formica conceded that some of her email correspondence was inappropriate. She regretted sending it. Ms Formica was a person who was prepared to make concessions in her evidence. Ms Formica was strenuously and extensively cross-examined by Mr Tree SC on behalf of the plaintiff. She gave straightforward and credible evidence. I accept that Ms Formica is an honest, truthful and reliable witness in this case.
Michael Brett-Young
289 Mr Tree in his submissions at the end of the hearing stated that Mr Brett‑Young’s credibility was not in question. I find that was an appropriate concession to make. I found Mr Brett‑Young was a considered, accurate and reliable witness. He readily conceded what he could not recall or did not know. Mr Brett‑Young was also extensively cross-examined and I find that he gave his evidence in a forthright manner.
Mr Tony Ritchie
290 Mr Ritchie is the husband of the plaintiff. He gave evidence which was supportive of his wife. Clearly he was relying on and accepted the history of events at MBC as told to him by the plaintiff. Mr Ritchie came over as a compassionate man who was supportive of his wife in the upbringing of their children and in the pursuit of this claim by the plaintiff. I accept he was giving his evidence in the honest belief that he was accurate given the circumstances in which he found himself.
Failing to Call Witnesses / Jones v Dunkell (1959) 101 CLR 298
291 Mr Tree SC on behalf of the plaintiff submitted that the inference should be drawn against the defendant because it failed to call Mr Josh Bornstein, a partner of the defendant firm. The basis for the submission was that because Mr Bornstein was an expert in industrial relations and bullying type cases, that the failure to call him meant that I was to draw an inference against the defendant on the issue of foreseeability of psychiatric injury to the plaintiff. On the basis of my findings in relation to the alleged intimidatory, threatening and harassing behaviour by Ms Formica, I reject that submission. Further, Mr Brett‑Young in his evidence clearly conceded that he knew about the effects of bullying, had read papers on it and had been to seminars on the issues surrounding intimidatory or harassing type behaviour in the employment setting. Mr Brett‑Young gave evidence that he had been in the firm when claims had been made by plaintiffs for psychiatric injury arising out of employment situations. I do not draw any inference against the defendant for its failure to call Mr Bornstein as a witness in this case.
Damages
292 I have not assessed damages in this case as I do not find the defendant liable for the plaintiff’s claim. By way of completeness, it was submitted on behalf of the plaintiff that her pain and suffering damages would be in the range of $300,000. It was submitted on behalf of the plaintiff that the total pecuniary loss damages after deduction of worker’s compensation payments already received was $2,502,499.50.
293 The statutory maximum for pecuniary loss damages if $1,211,860. On the basis of my findings for liability, it is unnecessary for me to assess damages in this case.
Conclusion
294 I reject the plaintiffs proposition and evidence that Ms Formica and Mr Brett-Young conspired to get the plaintiff to leave MBC. I do not accept the plaintiff’s allegations that Ms Formica humiliated, harassed, intimidated, undermined or bullied the plaintiff in the period January 2003 to 17 November 2003. I find that Mr Brett-Young acted as a reasonably prudent employer would act in the circumstance as I them for 2003 at MBC.
295 I do not accept in those circumstances that the defendant breached its duty of care to the plaintiff in the course of her employment.
296 The plaintiff’s claim is dismissed.
297 I will hear the parties on costs.
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