Christos v Curtin University of Technology [No 2] - [2015] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHRISTOS -v- CURTIN UNIVERSITY OF TECHNOLOGY [No 2] [2015] WASC 72

CORAM: McKECHNIE J

HEARD: 14-29 OCTOBER 2013, 20-24 JANUARY & 24 JULY 2014

DELIVERED : 27 FEBRUARY 2015

FILE NO/S: CIV 1363 of 2009

BETWEEN: GEORGE ARTHUR CHRISTOS
Plaintiff
AND
CURTIN UNIVERSITY OF TECHNOLOGY
Defendant

Catchwords:

Employer/employee relationship - Whether contract includes implied term for grievance resolution - Negligence - Allegation of bullying and victimisation not sustained - Whether breach of duty of care - Whether psychiatric injury foreseeable - Limitation period - Whether acts beyond limitation period are admissible - Definition of bullying, harassment and victimisation

Legislation:

Civil Liability Act 2002 (WA)
Limitation Act 1935 (WA)
Occupational Safety and Health Act 1984 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Plaintiff's claim dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M A Tedeschi
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: Blatchfords Lawyers
Defendant: Lavan Legal

Case(s) referred to in judgment(s):

Brown v Cashman [2013] VSCA 122
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616
Commonwealth Bank v Barker [2014] HCA 32; (2014) 312 ALR 356
Hegarty v Queensland Ambulance Service [2007] QCA 366
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40

TABLE OF CONTENTS

The case in overview
The trial
Impressions of the plaintiff and other witnesses

Bullying, victimisation and harassment
The amended pleadings - The respective cases
Breach of the implied terms of the contract claim
Breach of duty of care claim
The damages claim
The plaintiff's evidence
Rulings on the plaintiff's evidence (Exhibit A)

Background
Events leading up to me lodging a grievance complaint in May 2002 and events thereafter until September 2003 (Exhibit A, page 65)

The balance of the plaintiff's statement (exhibit A)
The grievance complaint: 1 May 2002 (Exhibit 285)
Grievance resolution policy (Exhibit 1340)
The legal status of the grievance policy
Action after the formal grievance of 1 May 2002
The plaintiff is suspended in September 2002
The evidence of Professor Lee
The plaintiff's submissions on the suspension
The suspension triggered an adjustment disorder
Plaintiff's cross‑examination
Specific matters of evidence

(a) Airline ticket

(b) The workers' compensation application (Exhibit 633)

Re-examination of plaintiff
Other non‑medical witnesses called by the plaintiff

(a) Janet Sinclair‑Jones (Exhibit E)

(b) Dae Cho (Exhibit F)

(d) Gopalan Nair (Exhibit G1)

(e) Zaneta Mascarenhas (Exhibit J1)

(f) Mary Power (Exhibit K1)

(g) Sarina Anne Cooper (Exhibit L1)

(h) Robert James Simpson (Exhibit M1)
(i) Mervyn John Lynch (Exhibit N1)

(j) Jennifer Ann Christos (Exhibit O1)

(k) Lou Giannini (Exhibit P1)

(l) David Montrose Torr (Exhibit D)

Cross‑examination

(m) John Angus Innes

The defendant's witnesses

(a) Professor Peter Lee and Mr Liam McGinniss

(b) Jo‑Anna Ellen Keenan

Airline ticket
Leave balance
Cross-examination

The grievance process
Requests about return to work
Use of office
The camera
Cross‑examination

(d) Bruce Dearden Ridley (Exhibit T)

Cross‑examination

(e) Dr Gem Cheong (Exhibit U)

Medical evidence - the non‑specialists

(a) Dr Terence Choy

(b) Dr Nigel Bill

Medical evidence - Psychiatric evidence

(d) Dr Lance Risbey

(e) Dr Jonathon Spear

(f) Dr Ross William Manners

(g) Dr Lawrence Dominic Terace

Dr Terace's criticisms of Dr Risbey

(h) Dr Sean Murray

The Civil Liability Act 2002 (WA) and Workers' Compensation and Injury Management Act 1981 (WA)
Curtin's duty of care
The findings that Curtin is not liable
Assessment of damages

Conclusion

McKECHNIE J:

The case in overview

Dr George Christos (the plaintiff) is a scientist and mathematician now aged 58. In January 1991 he was appointed a lecturer in applied mathematics at Curtin University (Curtin) obtaining permanent tenure on 12 June 1992.
Beginning shortly after his appointment the plaintiff was in conflict with staff members particularly Dr Lou Caccetta, the Head of the Department of Mathematics and Statistics. In May 2002 he initiated Curtin's dispute resolution policy by making a formal written grievance. Grievances should be resolved in three months. He claims that Curtin, in breach of its contract with him, failed to progress that dispute resolution process so that his grievances would be resolved.
In August 2002 Curtin received complaints about the plaintiff from some students. Professor Peter Lee stood the plaintiff down from teaching because of these complaints on 2 September 2002 although he was subsequently reinstated. Most of the complaints were not sustained and he was counselled for one minor matter.
On 4 November 2002 the plaintiff went on sick leave. Effectively the plaintiff never returned to work although he did attend to some matters from time to time. Instead, as suggested by his general practitioner, Dr Nigel Bill, he took long service leave in the first half of 2003.
The plaintiff lodged a workers' compensation claim in 2003 which in due course was rejected. During that year there were communications between the plaintiff, representatives of Curtin and various doctors concerning the resolution of his grievances among other things. The plaintiff's list of grievances and the persons he held responsible continued to grow. He complains of bullying, victimisation and harassment by various Curtin staff members during this time.
On 12 July 2004 the plaintiff took his work computer to Curtin IT for repairs. This was a computer which he had available to him for use at home. When the computer was examined, it had a quantity of illegally downloaded music and some pornography. Apart from some files which the plaintiff suggests were for some work he had done on 'memes' it is not suggested that the plaintiff was responsible. Another person close to the plaintiff was responsible for the music and pornography.
The discovery of this material set in train a process which resulted in the Vice‑Chancellor terminating the plaintiff's employment on 28 October 2004.
The plaintiff took proceedings for wrongful dismissal before the Industrial Relations Commission but was unsuccessful. The Full Bench subsequently refused leave and dismissed his appeal.
It was not until 20 February 2009 that the plaintiff commenced proceedings against Curtin. For much of the time since he was unrepresented but by the time of trial he had engaged solicitors and was represented by counsel, Mr Tedeschi.
The date of the writ has significance because a considerable number of events the plaintiff alleges occurred prior to 20 February 2003. If Curtin did breach any of the obligations it owed to the plaintiff before that date, he is precluded from making a claim because of the Limitation Act 1935 (WA) s 38. That is not to say that events that occurred before that date are without significance. The grievance procedure was, according to the plaintiff, set in train before then and was not resolved before 20 February 2003. The plaintiff alleges Curtin breached its obligations in failing to resolve the grievance.
It is not in issue that the plaintiff is now psychiatrically disabled. The cause of that disablement is a central matter in this trial. The plaintiff asserts and Curtin disputes that Curtin failed in its duty of care towards him and that breach of its duty was a cause of his ongoing psychiatric illness.
Curtin concedes that it owed the plaintiff a duty of care but denies that it breached it or that any action by Curtin staff within the limitation period caused or contributed to his psychiatric illness.
I find that Curtin did not breach any implied or incorporated term of its contract with the plaintiff. Curtin acted reasonably at all material times and did not breach its duty of care to the plaintiff. The specific risk of psychiatric injury was not foreseeable.
I find that none of Curtin's staff bullied, harassed or victimised the plaintiff. Nor did they act in concert to do so. The predominant motive of the Curtin staff was the welfare of the plaintiff whom they knew to be stressed and fragile. In consequence the plaintiff's claim is dismissed. These are my reasons.

The trial

The trial was scheduled for 12 days commencing 14 October 2013. It was not completed within that time and evidence was taken over a further five days in January 2014.
By 24 January 2014 the evidence had been completed but counsel had not commenced their final addresses. By direction, final submissions were in writing and two days were allocated for oral submissions. On 24 July 2014 the parties managed to complete both sets of submissions with oral submissions within a half a day.
I told the parties that because the court was down two judges I may not get time to write the judgment until January 2015 (ts 1471) and so that proved.
During the trial the defendant objected to many paragraphs of the plaintiff's proof of evidence and to aspects of the evidence of other witnesses. Without having heard sufficient about the case to form a view, I indicated that I would consider both the defendant's objections and the plaintiff's responses to those objections and make rulings in the course of this judgment.
The plaintiff's case depends mainly on the voluminous documentation, chiefly emails and corroborating evidence from some witnesses. Many of these witnesses were not called. Their statements were tendered subject to objection. The plaintiff also relies on medical and psychiatric evidence about the cause of his condition and prognosis.
The plaintiff's witness statement (exhibit A) dated 9 April 2013 runs to 309 pages and 2,227 paragraphs. Much of the statement (exhibit A) and other evidence led by the plaintiff is subject to general or specific objections by Curtin. Those objections are broadly as to relevance of some material and as to admissibility of opinion and hearsay evidence.
A prime example of an objection to relevance is to much of the evidence of events before February 2003.
Broadly speaking, as will become apparent, I uphold that objection. Some of the material is relevant to and gives context to evidence of events within the limitation period. Although I have read and reread all the evidence and the voluminous exhibits, I do not by any measure intend to refer to all of the evidence in this judgment but it may be taken that if I do refer to a piece of evidence I have considered that it is admissible either as giving context or directly relevant to events which occurred after the limitation period.

Impressions of the plaintiff and other witnesses

The plaintiff was cross‑examined for two days and re‑examined for nearly a day. This extended period in the witness box enabled me to form some impressions of him. I accept that the plaintiff was generally honest although there may have been one or two areas where he dissembled. Curtin does not challenge his honesty.
He was obviously under stress and on occasions would wring his hands repeatedly. At times he was labile. I recognise this as part of his ongoing psychiatric condition and did not draw any inference adverse to his credibility from it.
There is a difficulty throughout his evidence and indeed it is manifest in the pleaded case. The plaintiff sees actions of others through the prism of his own distorted thinking. His distorted feelings and vision are expressed not only in his lengthy witness statement and his responses in cross‑examination but in the many emails he has sent to Curtin staff and others over the years.
I find that though the plaintiff's evidence honestly expresses his opinions and emotions, those opinions are unreasonably held. This has distorted his thinking and reaction to such a degree that what might otherwise pass for ordinary interchange is regarded by him as victimisation and harassment.
I am conscious of course that if Curtin has failed in its duty of care, a consequence might be that a person develops such feelings.
Any judge dealing with a case alleging bullying or victimisation must be assiduously careful in analysing the evidence. As other cases show, bullying behaviour can be pervasive. It can be masked by apparent expressions of care or goodwill. A person who is bullied or harassed may well develop feelings of persecution which may be indeed a proper reaction.
I have been acutely conscious of this possibility when listening to and later reviewing the plaintiff's evidence and those of other witnesses, especially those who are accused of bullying or harassing behaviour.
I am not persuaded on the balance of probabilities that the behaviour which the plaintiff classifies as bullying, harassment and victimisation can be reasonably so classified.

Bullying, victimisation and harassment

The plaintiff used these terms in his pleadings and his evidence sometimes in combination and sometimes separately.
'Bullying' as defined in the Macquarie Dictionary as:
(1) a bluster and quarrelsome over bearing person who brow beats smaller or weaker people; (2) to be loudly arrogant and over bearing.
'Harassment' is defined as:
To disturb persistently; torment, as with troubles, cares etc.
'Victimise' is defined as:
(1) to make a victim of; (2) to discipline or punish selective, especially as a result of an industrial dispute; (3) to punish unfairly.
These words are not terms of art but bear their ordinary meaning.
Bullying does not of itself give rise to a claim for damages. In some circumstances there may be a statutory claim but such a claim is not pursued in this litigation. The plaintiff relies on the Occupational Safety and Health Act 1984 (WA) s 19 but relevantly any cause of action under that statute is equivalent to a breach of the common law duty of care.
Bullying is relevant to whether an employer breaches its duty of care to provide a safe place of work for its employees. This may on occasions require an examination of policies and on other occasions whether those policies are properly and repeatedly implemented. At other times it may require examination as to whether an employer becomes aware of instances of bullying an employee by other employees and either condones or acquiesces in its continuation.
In Brown v Cashman [2013] VSCA 122 the Court of Appeal adopted without adverse comment the appropriate definition of 'bullying' as set out in a Worksafe Victoria Guidance Note on Prevention of Bullying and Violence at Work dated February 2003 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.
This definition of workplace bullying does not have legislative force but was regarded as a reasonable working definition of workplace bullying against which to objectively analyse the allegations made in that case.
I adopt the same definition. It is noteworthy that within the definition, 'unreasonable behaviour' is subject to an objective not a subjective test. This must plainly be right as it accords with the general law of negligence.
Whether the plaintiff was subjected to such behaviour in the period outside the limitation period is not for me to judge. If he was, that may explain the distortion in his thinking so that he now perceives any robust interchange which would not affect a person of normal fortitude as bullying behaviour.
But the actions of Curtin staff must be judged on standards of objective reasonableness and intention. I find that the actions of Curtin staff within the limitation period were objectively reasonable and moreover and critically, no one acted individually or with intent to do the plaintiff harm.
In evaluating the plaintiff's evidence I have ignored the website RSVP (exhibit 1112) and the description the plaintiff provided about himself. The plaintiff had recently been through a divorce and it is in the nature of such things that a degree of exaggeration about one's better qualities might be allowed for, if not expected on a dating website. I do not find that exhibit 1112 was an accurate reflection of the plaintiff's mental and emotional state in June 2004 but draw no adverse conclusion against the plaintiff. Its admission into evidence was not one of Curtin's better or more attractive points.
I have paid close attention to the plaintiff's attribution of bullying to Curtin staff and others.
I am not in a position to form any conclusion about Professor Caccetta or Professor O'Connor and nor do I have to.
But I did not detect in the Curtin witnesses either in evidence or in their many communications to the plaintiff, any inclination of animus towards him which might give rise to a bullying disposition.
On the contrary, they largely did not rise to a response that some of the plaintiff's emails might have provoked.
Understandably, at times both in his witness statement and in his evidence the plaintiff displayed difficulty in confining his evidence to matters of relevance. This is nowhere more evident than the disputes with Professor Caccetta and Professor O'Connor. So it is timely to state at the outset that this trial has never been about the legitimacy or otherwise of the plaintiff's grievances with Professor Caccetta or other members of staff. The actions of Professor Caccetta either predate the limitation period or, in respect of those actions after 20 February 2003, have limited relevance other than giving rise to a further grievance that might require resolution.
This case, as I kept remarking throughout the hearing, is not about bullying and harassment. It is about Curtin's response to allegations of bullying and harassment, whether Curtin provided a safe place of work for its employees, and whether it breached its duty of care to the plaintiff.
Notwithstanding, the plaintiff maintained focussed if not fixated on the actions of others not as giving rise to a grievance but as established fact. I will deal with the consequence of this later.
Regrettably, some of the plaintiff's fixations have rubbed off on his counsel. In the plaintiff's extensive written closing submissions it is asserted:
12.It is open to the Court to draw inferences adverse to the Defendant that:
(a)The complaints by students in September 2002 in relation to the plaintiff were instigated or encouraged by O'Connor and were not justified;
(b)Between 20 February 2003 and 29 September 2004 the Defendant, its servants or agents, decided not to assess or investigate the Plaintiff's unresolved grievances and instead to terminate his employment;
(c)The failure by the Defendant to call as witnesses at the trial, Caccetta, O'Connor, den Hollander, Anderson, Pepper and Twomey, without any explanation for the failure to call those witnesses supports the drawing of an inference adverse to the Defendant that the evidence of those witnesses would not have assisted the Defendant's case.
…
23.The Plaintiff was bullied and marginalised at work and had unresolved grievances which he cogently put in writing on 1 May 2002 identifying 6 formal complaints.
…
27.Prof. Brian O'Connor was a bully. Shouting at a member of staff on at last two occasions, once at the Plaintiff in a meeting with Prof. Caccetta. O'Connor also publically maligned the Plaintiff in front of all the staff at a staff meeting. This is bullying.
…
29.Jamie Simpson had personal clashes with Brian O'Connor in 2001 O’Connor also shouted at Jamie Simpson in a private meeting. Exhibit N paragraphs 228. O'Connor lost his temper with the Plaintiff on 14 November 2001 when he accused the Plaintiff of being disrespectful and slammed the phone down on him. Exhibit A paragraphs 512-514.

The plaintiff's submissions continue:
30.The Defendant objects that much of this background evidence is of no relevance, but does not say the events did not occur or the Plaintiff had a misperception of the past events complained of. It is not necessary for the Court to make any findings about those past events and the Plaintiff continued to be aggrieved about them and those matters remained unresolved during the period which is not time barred.
I ask rhetorically, if it is not necessary for findings to be made, why were these submissions put to the court? The fact that the plaintiff made an official grievance in May 2002 has never been in issue. The legitimacy of those grievances, for one reason or another has never been determined. It is not relevant to the plaintiff's pleaded case to determine them as they are outside the limitation period.
These submissions should not have been made. It is unfair to make allegations of bullying and harassment as if they were concluded facts when the only relevance is that the plaintiff thought himself treated such as to give rise to a grievance which would fall to be assessed by the Curtin grievance policy.
Despite the attack on the credibility of witnesses who were called by Curtin and were its employees at various times, I do not consider any of them was dishonest. It is difficult to escape the conclusion that Professor Lee did nothing in June 2002 when he spoke with the plaintiff and said he was going to speak with Professor Caccetta and Professor O'Connor. It does not appear that he ever spoke to either men as he should have done. His inaction at that time was in breach of the policy.
However, Professor Lee's action in standing down the plaintiff over the student complaints was a reasonable response and not part of victimisation or a vendetta notwithstanding the plaintiff's view of it.
My impression and conclusion in respect of Curtin's witnesses is that, to the extent of their recollection, they gave evidence honestly and reliably.
Both Professor Lee and Liam McGinnis gave many answers that were in substance 'I do not recall'. Other witnesses on occasions gave similar responses. I am unable to go behind that answer in view of the length of time which has passed before trial. Such an answer is entirely reasonable.
Although Mr McGinniss was cross‑examined repeatedly that there was nothing in his witness statement to suggest that he did certain things, the answer to why these were not included in his witness statement lies in the date of the witness statement (2013) and the passage of time.
By contrast, although I accept that the plaintiff was an honest witness in the sense that, except on a few issues, he was giving what he regarded as honest evidence, his perspective is so skewed that he has misinterpreted normally robust interchange and legitimate management concerns and directions as persecutory behaviour, victimisation and bullying. The plaintiff has mistaken the ordinary flow of interaction as targeted to him.
Some of the plaintiff's written responses by email were rude, disrespectful and quarrelsome. They do not show a person obsessed with solution of his grievances but a person adding to the list, everyone who either disagreed with him or failed to respond in a manner the plaintiff felt was appropriate. Even people like Mr McGinniss who manifestly was trying to help the plaintiff, eventually ended up on the list. Dr Hackett was on the list too though allegations against her were subsequently withdrawn by counsel in closing.
There is a factual finding I make having regard to all of the plaintiff's evidence including his written statement, his cross‑examination and the many documents he has authored.
I am satisfied from this evidence that even if Curtin has breached its obligation to expeditiously deal with the plaintiff's grievances, it would have made no difference to his condition. In other words, any breach by Curtin is not the cause of his ongoing disability.
That is because the evidence abundantly illustrates that the plaintiff would not be satisfied with the resolution of the grievance. Only the resolution of the grievance in his favour would be sufficient. So deeply is his belief in the correctness of the complaints that he believes that his grievances would inevitably be upheld.
In respect of the allegations of the bullying and harassment after 20 February 2003, that is unlikely to be so. In respect of matters outside the limitation period it is not possible to say because the substantiation of the complaints is not in issue.

The amended pleadings - The respective cases

In all my years as a judge I have rarely had a case that did not require some amendment to the pleadings shortly before or at trial. So much for case management. This case is no exception. However, the amendments did not cause the trial to overrun. But overrun it did.
The parties seriously under‑estimated the time for trial so that evidence had to be taken over two extended periods and final addresses months later. This is most unsatisfactory. I told the parties I may not reach this judgment until January 2015. That proved to be the case. However, I kept notes of my impression of the witnesses as they gave their evidence which proved an aid in recall. Moreover, most of the facts are contained in documents and indeed, most actions taken from time to time are not in issue. It is the legal or other consequences from those facts which are important.
After formal identification of the parties, the statement of claim pleads a contract of employment. Curtin denies that the Academic Industrial Award referred to by the plaintiff was part of the contract.
Paragraph 4(a) of the statement of claim lists the implied terms of the contract.
The plea of an implied term of a relationship of confidence and trust in the employment contract is now abandoned following Commonwealth Bank v Barker [2014] HCA 32; (2014) 312 ALR 356. The relevance of the now abandoned implied term related to an ingenious argument that was mounted by the plaintiff to overcome the obvious res judicata that the Australian Industrial Relations Commission's (AIRC) decision dismissing the plaintiff's appeal against his termination has on any argument that the plaintiff was not properly terminated because in breach of the implied condition Curtin failed to advise the plaintiff of a possible review procedure preceding the decision by the Vice‑Chancellor. Little needed to be said about the argument. Now nothing need be said. It must be accepted that the termination was lawful.
The defendant denies the allegations and says that:
4.1There was no term in the employment contract that incorporated as a contract term a workplace policy or procedure;
4.2The alleged term pleaded in paragraph 4(c) of the Statement of claim was not necessary to give business efficacy to the employment contract and is not so obvious that it goes without saying.
Paragraph 5 of the defence:
Except to say that:
5.1The Defendant made an agreement on 23 February 2001 with the National Tertiary Education Industry Union (NTEIU) known as the Curtin University of Technology Academic Staff Certified Agreement 2000 – 2003 (Academic Staff Agreement),
5.2The Academic Staff Agreement applied to all academic staff of the Defendant,
5.3The Academic Staff Agreement was binding on the NTEIU and the Defendant,
5.4The terms of the Academic Staff Agreement were not terms of contract between the Plaintiff and the Defendant,
the Defendant otherwise denies paragraph 5 of the Statement of Claim.
The defendant admits that there was an agreement with the NTEIU. It denies that these were terms of the contract between the plaintiff and the defendant. The statement of claim pleads express terms in the Academic Staff Agreement. The defendant denies the effect of those:
7.The Defendant admits that it owed to the Plaintiff a duty to take reasonable care to avoid conduct that it could reasonably foresee may cause injury to the Plaintiff but otherwise denies the allegations in paragraph 8 of the Statement of Claim.
8.Except to say:
8.1The Occupational Health, Safety and Welfare Act 1984 (OSH Act) applied to the Defendant as the Plaintiff's employer,
8.2Sections 19(1)(a), 19(1)(b) and 22 applied to the Defendant’s workplace in accordance with the wording of those sections,
8.3The Defendant will refer at the trial hereof to the wording of the OSH Act in its overall context to the Defendant's workplace,
8.4Breach of one of these provisions of the OSH Act does give rise to a right to claim damages,
the Defendant denies the allegations in paragraph 9 of the Statement of Claim.
As will became apparent whether the Occupational Health, Safety and Welfare Act 1984 (WA) applies makes no difference to the outcome.
The statement of claim pleads grievances that were not assessed or resolved by the defendant:
10.Between in or about the 20 February 2003 and the 28 October 2004 the Plaintiff had several grievances with the Defendant and members of its staff that were not assessed or resolved by the Defendant, despite numerous requests by the Plaintiff for the grievances to be addressed.
A list of grievances is set out particularised from (a) to (rr). I will evaluate these grievances. They are within the limitation period.
Particulars
(a) Outstanding since the 1 May 2002, the formal grievance complaint lodged in writing with Liam McGinniss (McGinniss), the Grievance Resolution Officer (GRO) of the Defendant, in which the Plaintiff complained of how he was being treated by Professor Lou Caccetta, (Caccetta) the Head of the Department Mathematics and Statistics and Professor Brian O'Connor (O'Connor) the Head of School of Applied Science and being marginalized or humiliated by them.
(i)Marginalization of the Plaintiff in failing to consider, invite or list him as a Participant or Consultant in the Western Australian Centre of Excellence in Industrial Optimisation;
(ii)Failing to place on the Agenda for staff meetings issues of concern to the Plaintiff;
(iii)At a staff meeting at about this time being publicly humiliated by Professor O'Connor, in front of other staff members by O'Connor disclosing the Plaintiff wanted to make a grievance complaint, and alleging the plaintiff was a troublemaker and mischievous in asking for items to be put on the agenda for staff meetings;
(iv)At the Plaintiff's annual review Professor O'Connor shouted uncontrollably at the Plaintiff when he tried to raise with Professor Caccetta the Plaintiff’s lack of involvement in teaching and administration;
(v)Failing to include the Plaintiff on an On Line Mathematics Teaching Committee when the Plaintiff had requested being involved in online teaching of mathematics and the Department had received a grant for 'An Online Flexible Self Learning Environment for First Year Students of Mathematics';
(vi)Persistently failing to reply to emails or reasonable requests such as the use of a room and computer access for a visitor from Monash University, funding to attend a conference, a key to enter the main office, or to move the fax machine to the staff Workroom area;
(vii)Disconnecting without notice to the Plaintiff his ability to make STD telephone calls on the telephone the Plaintiff had access to;
(viii)Failing to nominate the Plaintiff for an Innovative Teaching Award in May 2002.
(b)The Plaintiff's grievance of the 22 August 2002 in writing to McGinniss requesting the manner in which his Caccetta dealt with him regarding the loss of leave of one day, on or about the 15 July 2002 be added to his grievances, and which grievance was unresolved thereafter.
(c)The Plaintiff’s grievance in writing to Professor Peter Lee (Lee) dated 9 September 2002, expressing concern that Professor O'Connor, may have been involved in influencing or persuading 6 or 7 students to make 14 complaints against him, when the Plaintiff had a grievance complaint pending against O'Connor, and which grievance was unresolved thereafter.
(d)On 2 September 2002, George Christos was summons to the Executive Dean's office where a number of complaints were made about his teaching. These complaints from some 6 or so students, some past and some failed, where in effect collected, collated or involved by Prof. O'Connor, with whom the Plaintiff had a grievance complaint. The Plaintiff was stood down for 6 weeks or so, and this caused him some stress.
(e)On or around October 2002, the Plaintiff complained to the GRO McGinniss that he had been victimised by O'Connor and Lee because he had lodged a grievance complaint, and that Lee should not have taken the action he did, as he knew very well that they had been obtained through the express efforts of O'Connor, and Prof. Lee was supposed to be investigating the grievance complaint against Caccetta and O'Connor.
(f)On 26 September 2002 Prof. Lee summoned the Plaintiff to his office for writing to the Premier Dr Geoff Gallop and for writing a letter to the editor of the Sunday Times newspaper. It was alleged that the Plaintiff had violated the university's policy, whereas the Plaintiff maintained that he was purely exercising his academic freedom. The matter was referred to Pamela Hass (Legal Services) and to Gem Cheong (The University Secretary), neither of whom responded to requests by the Plaintiff to clarify the situation, and remained unresolved. The Plaintiff also lodged a grievance/victimisation complaint with the GRO McGinniss in relation to this, that is, in the way Lee had treated the Plaintiff. The GRO ordered an external investigation that was eventually curtailed by Lee himself in February 2003 onwards.
(g)On 1 October 2002, Lee wrote to McGinniss stating that as a result of two subsequent events requiring him to write to the Plaintiff that his position as an independent investigator of the grievance complaint by the Plaintiff against Caccetta and O'Connor had been compromised.
(h)A meeting took place between George Christos, McGinniss and Janice Young (the National Tertiary Education Union [NTEU] representative), on 30 October 2002 to discuss the victimisation of the Plaintiff by O'Connor and Lee. It was agreed that the matter needed to be investigated. On 11 December 2002, the GRO McGinniss wrote to the Plaintiff to say that he had arranged for an independent investigator Mary Power of Henderson Power and Associates to investigate the claims that the Plaintiff had been victimised for lodging a grievance complaint. That investigation never took place.
(i)On the 11, 17 and 20 November 2002 by emails from the Plaintiff to Jo Keenan, (Keenan) Senior Employee Relations Consultant an employee of the Defendant, the Plaintiff expressed his grievances that the Defendant would not allow him to inform his students he had been cleared of complaints made against him or to allow him to undertake a teaching survey with his students. He reiterated his request for an external investigation into his unresolved grievances. These matters remained unresolved thereafter.
(j)On 14 February 2003, the GRO wrote to the Plaintiff to inform him that the investigation to be undertaken by Mary Powers had been drafted. The Plaintiff George Christos complained that the terms of reference had been watered down and that the victimisation by Lee was originally also to be part of the external investigation.
(k)On 18 February 2003, The GRO wrote to the Plaintiff again to say that the investigation was being called off because the Plaintiff was going on Long Service Leave. The Plaintiff objected to this but the matter was never resolved. No external investigation took place.
(l)Documents obtained from the Defendant show that Prof. Lee was refusing to take part in an investigation that involved him and in effect was cancelling an investigation into his own inappropriate behaviour. Prof. Lee eventually agreed to take part in an investigation by June 2003 from pressure from the University Secretary Gem Cheong (Cheong) and the GRO, but even then wanted to restrict the investigation to an internal investigation.
(m)On 21 February 2003 the Plaintiff in an email to Professor Lance Twomey (Twomey) the Vice Chancellor of the Defendant, complained of continual harassment towards the Plaintiff and sought help in relation to his unresolved grievance complaints.
(n)On 21 February 2003 the Plaintiff in an email to Ron Jones (Jones) Director Workplace Relations, raised a grievance with regard to not being allowed to use his office while he was on leave but planning on doing research.
(o)On 25 February 2003 the Plaintiff in an email to Jones, McGinniss, Caccetta and others complained of continual harassment, bullying and victimisation, by the Defendant its servants or agents and the lack of investigation of his grievances.
(p)On the 6 March 2003 the Plaintiff's union representative Janice Young (Young) wrote to Cheong the University Secretary, expressing concern at the delay in dealing with the Plaintiff's written grievances lodged in May 2002, the continued harassment and victimisation of the Plaintiff as a result of the lodging his grievances, and requested that the matter be referred to an independent investigator with the terms of reference broadened as requested by the Plaintiff.
(q)Cheong did not reply until mid-June 2003, and then it was determined that an investigation could take place if the Plaintiff was on Long Service Leave but not while he was on stress leave pursuing a Worker's Compensation claim.
(r)The Defendant had reassigned the matter to a new GRO Bruce Ridley (Ridley) by that time and the Plaintiff anxiety was exacerbated by the fact that the investigation seemed to be going backwards, focusing on the original grievance complaint on 1 May 2002, and disregarding the subsequent victimisation claims against Lee and O'Connor.
(s)On the 5 March 2003 the Plaintiff in an email to Jones raised his grievance at not being given permission by Caccetta and Lee to use a residual air ticket to attend a conference at Bond University and the loss of research funds allocated to the Plaintiff.
(t)On or about the 7 March 2003 the Plaintiff lodged a worker's compensation claim against the Defendant for work stress and anxiety.
(u)The Plaintiff was at work at times between 2 September 2002 and 24 February 2003, but was not able to return to any work capacity after 24 February 2003.
(v)The Plaintiff's stress and anxiety was further exacerbated by the fact that the University took some 3 months or more to respond to a letter from Young to the University Secretary Cheong regarding the planned external investigation, which never took place.
(w)The Plaintiff's anxiety was further exacerbated by the continued bullying and victimisation that he had to endure during 2003 and 2004 at the hands of Jones, Lee and others. Eventually by mid or late 2003 the Plaintiff started to develop depression and started taking anti-depressant drugs. The Plaintiff had no history of any previous psychological or mental illness before this.
(x)By mid-2004 the Plaintiff's depression deteriorated further and he had to seek assistance from a psychiatrist, Dr Ross Manners, who he is still seeing today on a monthly basis. His depression is now described as chronic/major and the Plaintiff is on a Permanent and Total Disability Pension with his superannuation fund Unisuper.
(y)The Plaintiff also states that his condition deteriorated, or was aggravated significantly, when Jones and Caccetta were trying to throw him out of his office around October 2003, when the university stopped paying him around March 2004 and had disputed some of his leave, and when the investigation into the pornography found on his computer was being handled by Lee and Jones, who were the Plaintiff's main antagonists.
(z)In addition to these documented events, the Plaintiff's mental health deteriorated as a result of the sum total experience he had to endure in the pleaded period. The Plaintiff's documents give a good account of what he went through in this period.
(aa)On the 10 March 2003 the Plaintiff advised Cheong in writing that it was in his best interests in terms of his health for his grievances to be investigated as soon as possible, and provided a supporting medical report by Dr Terence Choy dated the 10 March 2003 to the Defendant.
(bb)On the 14 April 2003 the Plaintiff by email to McGinniss advised he had referred his previous grievances to Cheong and he expected his grievances to be dealt with by the Defendant.
(cc)On or about mid April or early May 2003 the Plaintiff lodged a grievance with the Defendant regarding the reluctance of the Caccetta to nominate the Plaintiff for another Innovative Teaching Award, just as he had previously failed to do so in 2002, and concerning Caccetta failing to respond to the Plaintiff’s earlier or any emails. The Plaintiff won the Curtin University Guild Excellence in Teaching Award in October 2002 after he had been stood down on teaching complaints in September 2002. After winning the Curtin University Guild Excellence in Teaching Award, the Plaintiff had every expectation that he would be nominated for an internal Innovative Teaching Award in 2003. The Plaintiff's initial grievance of included the fact that he was not nominated for this teaching award in 2002. See (a)(viii) above.
(dd)On or about the 13 June 2003 by email to the Plaintiff from Ridley another GRO for the Defendant Ridley informed the Plaintiff someone from outside the University would be appointed to investigate the Plaintiff’s unresolved grievances.
(ee)On the 17 and 18 June 2003 the Plaintiff by emails to Jones complained he was being bullied victimized and harassed and expressed his grievance to Jones. The email of 18 June 2003 was also copied to Cheong.
(ff)On the 25 June 2003 the Plaintiff wrote to Chong expressing his grievances at the delay in addressing his formal complaints lodged in May 2002, his persistent victimisation and bullying by staff of the Defendant against whom he had complained or were to investigate his complaints as a result of lodging his grievances, the failure by the Defendant to proceed with an external investigation into his grievances, management interference with the proposed external investigation, failure to investigate his claims of persistent bullying and victimisation, the Defendants proposal to appoint a different Acting GRO, and requesting the appointment of an independent investigator.
(gg)On or about 5 August 2003 the Plaintiff by email to Caccetta complained to him of his being harassed in that he was advised that his office was not available for use by the Plaintiff.
(hh)On 5 and 6 August 2003 the Plaintiff by emails to Jones, Cheong and Ridley complained of harassment by Jones in preventing him from using his office.
(ii)On or about the 11 August 2003 in a meeting with Ridley the Plaintiff made a grievance complaint about the harassment and bullying by Caccetta and Jones in relation to the use of his office, and sent an email to that effect on the 13 August 2003.
(jj)On or about this time the office saga was being investigated by a Worksafe Officer Mr David Torr, who found that there was other office space available and it was not necessary that the Plaintiff be vacated from his office. He expressed his concerns to Chris Pepper, the head of Health Safety or its equivalent at Curtin University.
(kk)On or about the 11 August 2003 a psychiatrist Dr L Risbey to whom the Plaintiff had been referred by Dr Choy, provided a medical report to Dr Terence Choy at the Curtin University Health Service, informing Dr Choy that the Plaintiff had an Adjustment Disorder with mixed anxiety and depressed mood, it would be beneficial to the Plaintiff to continue keeping busy, and it was essential he be allowed to attend the University campus to access his office and computer.
(ll)On the 13 August 2003 Ridley sent an email to Jones and Caccetta requesting the Plaintiff receive considerate treatment in regard to the requirement to vacate his office, however Jones and Caccetta continued to harass and bully the Plaintiff to vacate his office.
(mm)On the 19 and 23 August 2003, 5 and 8 September 2003 by emails to Ridley the Plaintiff requested his grievance concerning the use of his office and his victimisation proceed as a formal complaint.
(nn)On or about the 8 September 2003 Dr T Choy provided a medical report to Whom It May Concern advising that it would be beneficial for the Plaintiff to keep busy doing activities that were not stressful which report was provided by the Plaintiff to the Defendant on or about the 8 September 2003;
(oo)On or about the 11 September 2003 Dr Eddy Bajrovic to whom the Plaintiff had been referred by the Defendant, provided a medical report to Jones of the Defendant advising that the Plaintiff was suffering from a stress disorder, depression and anxiety, and that the prognosis for recovery and return to work was guarded unless there was a cessation of bullying and victimisation, and there was an investigation into the unresolved grievances of the Plaintiff.
(pp)On 10 November 2003, the plaintiff wrote to Ridley, the GRO, complaining that Caccetta was not replying to his emails and that Caccetta and Lee were refusing to allow him to expend funds from his infrastructure account. One of the requests to order forms was to buy a ticket to the Premier's Science awards for which the plaintiff had been nominated in two categories. The Plaintiff met with the GRO Ridley on 17 November 2003, with his union representative Young present.
(qq)On or about the 28 May 2004 by letter the Plaintiff wrote to Keenan the Manager Employee Relations of the Defendant, concerning his grievance about the back dating of his leave during the period 4 January to 23 February 2003, continuing victimisation and harassment by employees of the Defendant, and requesting the resolution of his leave entitlements and unresolved grievances. This letter was copied to Ridley and Cheong.
(rr)On or about the 4, 7, 9, 10, 11, 15 and 17 June 2004, the Plaintiff by emails to Cheong and to Ridley concerning unpaid leave informed them of his grievance against the persistent harassment by Keenan and Jones, his unresolved grievance outstanding for 2 years, and subsequent victimisation, and continual harassment, that he was extremely stressed, and was lodging a new grievance.
(ss)On the 25 June 2004 the Plaintiff lodged a further formal grievance with concerning his grievances outstanding since May 2002, and concerning his leave entitlements.
(tt)On or about the 8 June 2004 Dr Nigel Bill provided a medical report to Jo Keenan at Curtin stating that the Plaintiff was unfit to return to work.
(uu)On or about the 5 and 7 July 2004 Jones by emails to the Plaintiff enquired whether the Plaintiff would be returning to teaching when the Defendant well knew the Plaintiff was not fit to do so.
(vv)On the 5, 7 and 12 July 2004 by emails to Ridley the Plaintiff reiterated that he wanted his unresolved grievances outstanding since 2002, the grievance concerning his leave, the manner in which he was treated by the Defendant when he was ill, and harassment by Jones about when the Plaintiff would return to teaching to proceed and be resolved.
(ww)On the 12 July 2004 by email to Vice Chancellor Professor Twomey, the Plaintiff informed the Vice Chancellor about his unresolved grievances and sought the Vice Chancellor's assistance to ensure that the unresolved grievances were investigated and resolved.
(xx)On the 10 August 2004 by email to Cheong the Plaintiff requested the resolution of all unresolved grievances.
(yy)On the 19 and 23 August 2004 by emails to Ridley the Plaintiff requested the resolution of his unresolved grievance concerning disputed leave in January-February 2003, bullying harassment and victimisation that took place when he was suffering extreme stress.
(zz)On the 8 September 2004 by emails to Lee the Plaintiff complained about the lack of investigation of his unresolved grievances, bullying and victimisation for lodging grievances, and while on stress leave, and lack of impartiality in dealing with his unresolved grievances.
11.On the 29 September 2004 the Plaintiff received a letter from the Vice Chancellor Professor Twomey terminating his employment on 28 October 2004 when he was ill, his grievances had not been addressed and he had an outstanding workers compensation claim.
(a)The investigation into this matter was being handled by Prof. Lee and Jones who were the main antagonists to the Plaintiff at the time. The Plaintiff was not served natural justice, as he was never shown any of the material which was found on his computer, and was being harassed about this by Lee and Jones.
(b)The Plaintiff complained to the University Secretary Cheong during this period from June 2004 to September 2004 that Lee and Jones should not be handling this investigation. Cheong told the Plaintiff that the matter was not being investigated by Jones and Lee. The course of action undertaken in relation to the Plaintiff was to avoid dealing with his unresolved grievances' was predetermined by placing this investigation in the hands of Lee and Jones.
(c)In April 2004, before the pornography was discovered on his home computer, Curtin had already prepared a termination letter or had decided to terminate his employment and not to investigate his unresolved grievances.
(d)It is also evident that the Defendant had decided not to investigate his unresolved grievances as various members of Curtin University's senior staff were looking at ways to harass him, by gaining access to his emails, and raising questions about his website, and any publicity about his work or book 'Memory and Dreams'.

The allegation in paragraph 11(c) has not been made out in evidence.
12.Between in or about the 20 February 2003 and 28 October 2004, the Defendant and various members of its staff bullied harassed and victimised the Plaintiff.
Particulars
(a)By Caccetta, O'Connor, Keenan, Lee, and Jane den Hollander (den Hollander) in not allowing the Plaintiff to inform his students, or his colleagues, he had been cleared of the complaints made against him by 7 students. See Further and Better Particulars (FBP), filed on 28 March 2011, answer 2.
(b)By Caccetta, O'Connor, Keenan, and den Hollander, in not allowing the Plaintiff to undertake a teaching survey with his students after he had been cleared. See also FBP, answer 3.
(c)(Withdrawn)
(d)By Caccetta, Lee and Jones, in not allowing the Plaintiff to use a residual air ticket to attend a conference and causing him to lose research funds allocated to him. See also FBP, answer 5.
(e)Being informed by Caccetta, Lee and Jones that he would not be allowed to use his office to do research while he was on leave when other members of staff had been allowed to do so, and there was no lack of offices. See also FBP, answer 6. Jones also bullied the Plaintiff about coming onto campus while he was just on long-service leave, before he even filed a worker's compensation stress claim.
(f)By Jones and Caccetta continuing to insist the Plaintiff could not use his office when there was no need to do so. See also FBP answer 7.
(g)By Caccetta refusing to nominate him for the Curtin Excellence and Innovation Teaching Awards when the Plaintiff had won the Guild Teaching Award. Caccetta also refused to respond to emails from the Plaintiff. See also FBP, answer 8.
(h)By Caccetta, Lee, Cheong, Jones, Anderson, Pepper, and Twomey acting contrary to or disregarding medical advice known to the Defendant and in its possession that the Plaintiff suffered from an adjustment disorder with mixed anxiety and depressed mood, and by not allowing him to continue to keep busy by attending the campus and having access to his office, when the Defendant had been advised it would be beneficial to the Plaintiff’s recovery. See also FBP, answer 9.
(i)By Caccetta, Lee, Jones, Cheong and Twomey acting contrary to and/or disregarding medical advice known to the Defendant and in its possession that the Plaintiff suffered from a stress disorder, depression and anxiety and that the prognosis for his recovery and return to work was poor unless there was a cessation of bullying and victimisation, and the investigation of his unresolved grievances. See also FBP, answer 10.
(j)By Jones, Keenan and den Hollander inappropriately and wrongly back dating his application for leave for a period in or around January to February 2003. This took place around April 2004, when the Plaintiff was running out of leave and was ill and absent from work. See also FBP, answer 11. Keenan also tried to conceal the facts regarding his leave. Jones, Keenan, and den Hollander also forced the Plaintiff to lodge a detailed Federal Industrial Inquiry with Worksafe to recover the 6 weeks or so of leave that had been stolen from him.
(k)By Jones asking the Plaintiff when he intended to resume teaching duties when the medical evidence in the possession of the Defendant indicated that the Plaintiff was totally unfit to return to work. See also FBP, answer 12.
(l)By Cheong and Twomey repeatedly asking the Plaintiff to stipulate what his grievances were when the Plaintiff had already done so on numerous occasions as was well known to the Defendant. See also FBP, answer 13.
(m)By Cheong, Twomey, Lee, Jones, den Hollander, and McGinniss refusing to appoint an independent investigator and broaden the terms of reference into the Plaintiff’s unresolved grievances. See also FBP, answer 14.
(n)By the Defendant and its staff persistently refusing or failing to investigate the Plaintiff’s grievances properly or at all. See also FBP, answer 15.
(o)By Jones and Lee being involved in the investigation into the contents of the Plaintiff's work computer when the plaintiff had outstanding grievances against them, and continuing to be involved despite the Plaintiff raising his concerns by emails to Cheong on 26 and 27 July 2004 and by letter sent by email to Lee on 29 July 2004. See also FBP, answer 16.
(p)In addition to point (m), by Lee refusing to take part in an external investigation involving himself and Caccetta, and in effect cancelling that investigation. Lee also instructed Caccetta not to participate in any investigation. This refusal to take part in the external investigation persisted for 4 or 5 months up until about June 2003, when he was forced to participate by Cheong and McGinniss, but following a meeting with Cheong reverted back to an internal investigation. See email from Lee to Cheong 19.06.2003. The documents also show that Jones, den Hollander, and Keenan assisted Lee in putting off an external investigation.
(q)By McGinniss for cancelling the planned external investigation because the Plaintiff was on long-service leave, and not resuming it while he was the GRO.
(r)By McGinniss for not keeping the Plaintiff informed about the planned investigation while he remained GRO. The Plaintiff refers to a Memorandum from McGinniss to Lee dated 28 March 2003 that was copied to Cheong, but not to Young (name crossed out).
(s)By Cheong, for not responding to a letter from Young of the NTEU for more than three and a half months, asking what was going on with the external investigation.
(t)By Caccetta in not supporting the Plaintiff's application for worker's compensation, in a letter to Riskcover on 14.03.2003.
(u)By Lee and Keenan (and possibly Jones and den Hollander, and others) by violating the Plaintiff's Privacy and reading his emails from on or about 4 June 2003 onwards without instructing informing the Plaintiff. This would also have included access to privileged emails and documents between the Plaintiff and his lawyers, and the Plaintiff and his union, the NTEU.
(v)By Keenan and Lee (and possibly Jones and den Hollander, and others) by requesting Information Technology Services at Curtin University to investigate the appropriateness of the Plaintiff's webpages.
(w)By unknown parties for collecting media information about the Plaintiff. These media releases and media publications were collected by people at Curtin University other than Media Services. The Defendant has been asked to clarify who collected these media releases and publication, and for what purpose, but has not responded.
(x)By McGinniss (the then ex GRO, then working with Jones), and by others to be identified, in obtaining a copy of a TVW Channel 7 interview involving the Plaintiff.
(y)By Jones, den Hollander, Cheong, and Keenan for not taking any notice of an email from Valerie Raubenheimer regarding a call from a reporter from the TV program 'Catalyst' that queried the well-being of the Plaintiff. Instead of taking action on this independent advice, these people persisted to bully, harass and victimise the Plaintiff.
(z)By Caccetta for refusing to respond to 2 Request to Order forms. See emails from Plaintiff dated 3 Nov. 2003 and 4 Nov. 2004. One of the forms was to purchase a ticket to the Premier's Science Awards on 21 Nov. 2003. The plaintiff had been nominated for both the Science and Teaching (tertiary) awards. This matter was referred to the then GRO Ridley by the Plaintiff by email on 5 Nov. 2003. The matter was subsequently passed onto Lee.
(aa)By Lee, Jones, Keenan and Caccetta for repeatedly refusing to endorse the 2 Request for Order forms referred to above. The letter from Lee is dated 7 Nov. 2003, copied to Caccetta, Jones and Keenan. The Plaintiff referred the matter to the GRO again on 10 Nov. 2003.
(bb)The Plaintiff replied to Lee (copied to Cheong and Ridley) by email on 10 Nov. 2003. Lee refused permission to expend funds again in an email dated 10 Nov. 2003, copied to Cheong, Young (NTEU), David Torr (Worksafe), Ridley (GRO), and Jones.
(cc)The Plaintiff replied to Lee again on 10 Nov. 2003. The Plaintiff called for a meeting with Ridley (GRO) on 11 Nov. 2003 but was too unwell to meet immediately. A meeting took place between the Plaintiff, Ridley, and Young on 17 Nov. 2003.
(dd)The Plaintiff wrote to Lee again on 17 Nov. 2003 saying that he understood that the Division of Engineering, Science and Computing was buying tickets for all nominees, and asked if he was entitled to have a ticket as well, as he had been nominated for 2 awards.
(ee)From the Defendant's document lists there are numerous email between Lee, Jones and Keenan conspiring to refuse to allow the plaintiff to expend funds, dated 10 Nov. 2003, 11 Nov. 2003, and even on 25 Nov. 2003.
(ff)By Keenan and den Hollander for questioning and not recognising the Plaintiff's Curtin University Guild Excellence in Teaching Award. On 17 June 2004, Keenan receives an email from Melinda Fletcher (Curtin Guild) replying to a request for information regarding the Plaintiff's attendance at the award ceremony on 24 October 2002. The Plaintiff was also not invited to attend the Graduation Ceremony at the Burswood Casino Complex on 8 Sept 2003 to receive his award.
(gg)When the Plaintiff was notified by the Guild about the award ceremony, he attended. When he appeared there, den Hollander was obviously not expecting him to attend. When the award was given to the Plaintiff, all den Hollander said in her introduction was something like, 'George has just returned from long service leave', whereas she knew of the Plaintiff's excellent record in teaching, and gave a glowing introduction for the other award winners.
(hh)This follows bullying, harassment and victimisation of the Plaintiff by Keenan and den Hollander in October and November 2002 regarding his Guild Award, and attempts by den Hollander to white-ant his Guild Award in October 2002.
(ii)The Plaintiff also wrote to Janet Pearce (Manager Graduations) after the ceremony to complain about not being invited and saying that the whole experience was a bit degrading, and asked if he could receive the award properly in 2004. Janet Pearce said she would put it to den Hollander and never heard back from anyone.
(jj)By various members of staff at Curtin University (including Lee, Jones, Cheong, and others) by breaching the Plaintiff's privacy by taking a complete copy of his home computer's hard drive (not just the pornography), looking through his files, and not informing him they had done so within the prescribed period under the Privacy Act 1988. The Plaintiff also had privileged documents on his computer that were between himself and his lawyer and the union representative of the NTEU. This gave the Defendant, including their servants and the Plaintiff's main antagonists, complete access to everything on the Plaintiff's hard drive. The information obtained was used to avoid dealing with his outstanding grievances.
(kk)By Lee for informing Unisuper 'Disablement or Temporary Incapacity Benefit', on or about March 2004 that Curtin could not continue to employ the Plaintiff without informing the Plaintiff.
(ll)By Jones, Lee, and Twomey for using as an excuse the pornography discovered on his computer to avoid dealing with his grievances.
(mm)By Jones, Lee, and Twomey for using as an excuse to avoid dealing with his grievances copyright breaches, whereas copyright is rife at Curtin University. The Plaintiff was also not shown any of the offending material found on his computer.
(nn)By Jones, Lee, Cheong, Twomey and others for not providing the Plaintiff with natural justice. The plaintiff was persistently asked to answer questions about material on his home computer that he had never seen.
(oo)By Lee by presenting the VC a doctored report with his recommendation to the VC to sack the Plaintiff that did not include all of the replies by the Plaintiff to letter written to him by Lee and Jones.
(pp)By Jones, Lee, and Twomey for not allowing, or preventing, the Plaintiff to have a review of the decision to sack him before the 28 October 2004.
(qq)By Twomey for not assisting the Plaintiff to resolve his complaints when he had an excellent record in teaching, research, community service and in the media. Twomey was well aware of the Plaintiff's reputation and good service. Twomey had previously asked the Plaintiff to meet with the Governor of Western Australia, John Sanderson, when the Governor asked if he could spend some time talking to an expert in 'chaos theory'.
(rr)By Cheong, specifically, who is the designated whistle-blowers friend at Curtin University, for not taking appropriate action to end the bullying harassment and victimisation of the Plaintiff.
9.As to paragraphs 10 and 11 of the Statement of Claim the Defendant says that:
9.1By letter to Liam McGinniss dated 1 May 2002 the Plaintiff complained about the way he was treated by Lou Caccetta and requested review by Mr McGinniss,
9.2Subsequent to 2 September 2002 the Plaintiff:
9.2.1was absent from work until he was dismissed from his employment in September 2004,
9.2.2sought to expand the initial complaints by adding new complaints about numerous officers of the Defendant,
9.2.3made numerous vague claims of alleged bullying harassment or victimisation,
9.2.4failed to articulate his accumulated complaints in a complete and well documented submission,
9.2.5refused to participate in the grievance process, or was only prepared to participate in a process on the Plaintiff's terms,
9.2.6sought to direct how the process was to be conducted,
9.3The Defendant endeavoured to progress and resolve the Plaintiff's initial grievance,
9.4In June 2002 the Plaintiff sought resolution by apologies from Lou Caccetta and Brian O'Connor and cessation of claimed marginalization,
9.5In August 2002 14 complaints about the Plaintiff's performance as a senior lecturer were received from students of the Defendant. The complaints, if true, were in the nature of the Plaintiff bullying the students to secure student support for teaching awards or evaluations,
9.6By minute dated 22 August 2002 the Plaintiff sought to expand his complaints to include a 'sick leave saga' and he refused resolution of his grievances by an apology from Lou Caccetta,
9.7on 2 September 2002 Prof Peter Lee directed the Plaintiff not to carry out teaching of students pending investigation of the student complaints,
9.8from and after 2 September 2002 until he was dismissed from his employment on 29 September 2004 the Plaintiff:
9.8.1suffered from depressive mental illness caused in September 2002 by his response to being stood down from teaching duties and first notified to the Defendant by medical certificate dated 24 February 2003; and
9.8.2was absent from work or did not undertake any work of significance in fulfilment of work duties and accordingly he was not exposed to workplace stresses,
9.9in September 2002 the Plaintiff sought to expand his initial grievance by complaining to Prof Lee about the conduct of Prof O'Connor,
9.10by letter dated 26 September 2002 Prof Lee asked the Plaintiff to explain a letter he had written to Dr Geoff Gallop, and copied to Prof Lee, using University stationery/letterhead to express a personal opinion,
9.11on 7 October 2002 the Plaintiff met with Prof Lee and Jo-Anna Keenan and discussed the student complaints, the Plaintiff's letter to Dr Gallop, and the Plaintiff's grievance,
9.12Prof Lee advised the Plaintiff by letter dated 21 October 2002 that having considered the Plaintiff's response on one student complaint the Plaintiff required counselling, the Plaintiff was expected to comply with the Policy on Academic Freedom, and he had written to Liam McGinniss as Grievance Resolution Officer asking for his assistance in appointing an independent mediator,
9.13by the same letter Prof Lee expressed his preference that the Plaintiff, so as not to disrupt students any further, only perform research activities and other non-teaching duties as allocated, for the remainder of the 2^nd semester in 2002 and stated that the Plaintiff will return to his usual teaching duties in the 1^st semester of the 2003 academic year,
9.14on 30 October 2002 the Plaintiff sought to expand his complaints and to direct the resolution process by advising Liam McGinnis that he was not willing to participate in mediation, and that his dispute extended to Prof Lee because he was suspended from teaching,
9.15from 4 November 2002 until 3 January 2003, the Plaintiff was absent from his employment with the Defendant,
9.16by email dated 26 November 2002 the Plaintiff advised Liam McGinniss that he did not want his grievance dealt with by a mediator but he wanted someone, preferably from outside the University, to investigate;
9.17on 28 November 2002, the Plaintiff's medical practitioner recommended that in the best interests of the Plaintiff's health he take long service leave from teaching duties for the first half of 2003,
9.18in December 2002 Liam McGinnis contacted Mary Power but she had not advised times to meet the Plaintiff and other parties,
9.19in January 2003 the Plaintiff was absent from work or did not undertake any work of significance in fulfilment of work duties,
9.20at a meeting with Prof Lee and Ron Jones on 21 January 2003, the Plaintiff agreed that he would take annual and long service leave from 28 January 2003 until 27 June 2003,
9.21on 28 January 2003 the Plaintiff commenced long service leave,
9.22in February 2002 Liam McGinniss, who was then unaware that the Plaintiff was on long service leave, drafted terms of reference for an external investigator but the Plaintiff did not agree to those terms and refused to meet with the proposed external investigator,
9.23by email dated 18 February 2003 Liam McGinniss, advised the Plaintiff that he was unaware until the previous week that the Plaintiff was on long service leave and McGinniss was of the view that it would not be sound management to conduct any investigation whilst the Plaintiff was on leave,
9.24on 24 February 2004 the Plaintiff was certified by Dr T Choy as totally unfit for work by reason of depressive mental illness that commenced on 2 September 2002 when he was stood down from teaching duties, and he was subsequently certified totally unfit for work by various workers' compensation medical certificates between 24 February 2003 and 23 June 2003,
9.25in February 2003 the Plaintiff purported to withdraw from taking long service leave and to take sick leave because he was distressed from being stood down in September 2002 and the Plaintiff made a claim for workers’ compensation for depressive mental illness,
9.26after February 2003 Prof Lee, Ron Jones and Gem Cheong were concerned about risks to the Plaintiff of participating in a grievance process when he was ill,
9.27in February and March 2003, although he was certified totally unfit for work, the plaintiff sought approval to buy an airline ticket to travel to a university in Queensland,
9.28on 7 March 2003 the Plaintiff lodged a workers' compensation claim for ‘stress/anxiety/depression’ that he claimed started on 2 September 2002 and was caused by being stood down from teaching,
9.29by email to Liam McGinniss dated 14 April 2003 the Plaintiff sought to expand his complaints by complaining about Lou Caccetta not nominating the Plaintiff for a teaching award,
9.30in April 2003 the Plaintiff considered that Liam McGinniss was 'incompetent' and staff at the university were 'idiots' and wanted an independent investigation of his grievance or resolution by the Industrial Relations Commission,
9.31in May 2003 the Defendant sought a psychiatrist's opinion on the Defendant participating in a grievance process,
9.32by medical report dated 6 June 2003 Dr Lawrence Terace, psychiatrist, reported that the Plaintiff had the capacity to participate in the Defendant's grievance resolution protocol and it would probably be in his best interests to participate in such a procedure to enable him to move on with his life,
9.33by letter dated 12 June 2003, Ron Jones advised the Plaintiff that at expiration of his medical certificate on 23 June 2003 and subject to the Plaintiff wishing to return to work, the Plaintiff was required to provide the Defendant with a medical certificate certifying his fitness to recommence work, but by email dated 17 June 2003 the Plaintiff responded to the letter as 'nonsense', that he would disregard, and 'ridiculous',
9.34by email to Bruce Ridley dated 13 June 2003 the Plaintiff indicated a potential expansion of his complaints to include up to 7 people other than Lou Caccetta, but he did not articulate the nature of the complaints,
9.35by email to Bruce Ridley dated 14 June 2003 the plaintiff stated that he was only prepared to talk to an independent legal investigator or his own lawyer, and he declined to meet with Mr Ridley unless he received an official statement that an investigation will take place and his workers’ compensation claim had been assessed,
9.36in June 2003 the Plaintiff sought to expand his grievance by complaining about Ron Jones telling him not to use his office when on leave,
9.37by email to Gem Cheong dated 18 June 2003 the Plaintiff said that he would make grievance claims against a number of people including Prof Lee and Ron Jones and that he would outline all of his grievances to an independent investigator,
9.38by letter dated 20 June 2003, the Defendant
•advised the Plaintiff that upon medical advice, and solicitors' advice received last week it was appropriate and desirable to proceed to conduct the grievance inquiry;
•recorded that the Plaintiff did not wish to deal with any of the Defendant’s staff including Bruce Ridley;
•advised the Plaintiff that the Defendant was not prepared at that stage to accede to the Plaintiff's request for an external investigator to investigate the grievances;
•advised the Plaintiff that the material provided by the Defendant to that date, was not in a form which permitted effective investigation of the grievances;
•advised the Plaintiff that the Defendant was very keen to progress the investigation of the Plaintiff's grievances;
•encouraged the Plaintiff to contact Bruce Ridley in his capacity as Grievance Resolution Officer to discuss the construction of the Plaintiff's grievance submission,
9.39on 2 July 2003, liability for the workers compensation claim that the Plaintiff had previously lodged, was declined by the Defendant's workers compensation insurer,
9.40in July 2003 the Plaintiff rejected an offer of assistance from Bruce Ridley to construct the grievance and conduct the inquiry and the Plaintiff insisted on the Defendant engaging an independent investigator,
9.41by letter to Gem Cheong dated 16 July 2003 the Plaintiff indicated that he was not prepared to participate in grievance resolution with Bruce Ridley as Grievance Resolution Officer, he had no faith in the process, he was not prepared to talk to anyone other than an independent legal investigator, and the university should guarantee workers' compensation payments,
9.42by email dated 17 July 2003 to Bruce Ridley the Plaintiff advised that he could not take part in any investigation and his condition was worse after his workers' compensation claim had been rejected,
9.43the Plaintiff provided the Defendant with medical certificates certifying the Plaintiff unfit for work from 23 June to 14 July 2003, 21 July to 28 July 2003, 11 August to 25 August 2003 and 25 August to 25 September 2003,
9.44by email dated 25 July 2003 Gem Cheong required the Plaintiff to provide a full and complete summary of his concerns and a coherent and well documented submission,
9.45by letter dated 5 August and email dated 14 August 2003 to the Plaintiff, Ron Jones confirmed that as the Plaintiff was on sick leave, there was no need for the Plaintiff to use his office at the Defendant's campus. By the same email, the Plaintiff's commitment was sought to remove his papers from his office or store them so that the office could be allocated to another person in the absence of the Plaintiff on sick leave,
9.46despite being absent for almost a year and certified unfit for work the Plaintiff refused to vacate or clear the Defendant's office and by email to Ron Jones dated 5 August 2003 described the request for use of the Defendant’s office space as 'extreme action' and by email to Bruce Ridley of that date described it as an 'attempt to harass'. By email to Mr Jones dated 14 August 2003 he requested that Mr Jones prove the 'genuine' need to use its own office which the Plaintiff labelled 'my office',
9.47in August 2003 and for the foreseeable future the Plaintiff had no need for an office at the Defendant's campus other than using it for his own and not the Defendant’s purposes,
9.48in August 2003 the Plaintiff sought to expand the scope of his grievance by complaining about Lou Caccetta and use of an office by the Plaintiff when he was on sick leave,
9.49in August 2003 the Plaintiff decided to pursue his workers' compensation claim rather than a grievance process,
9.50on 11 September 2003, the Plaintiff advised Dr Eddy Bajrovic that he did not consider that his health condition would improve sufficiently to enable him to return to work until
•his workers compensation claim (which had been declined on 2 July 2003) was accepted;
•alleged bullying and victimisation of the Plaintiff had ceased; and
•an investigation into his grievances had been undertaken,
9.51in September 2003 the Plaintiff was still insisting that the Defendant engage an independent investigator,
9.52on 2 October 2003, the Plaintiff agreed that Bruce Ridley as Grievance Resolution Officer could investigate the Plaintiff's grievances and complaints. On the same date, the Plaintiff was again advised that the grounds of the grievances needed to be clarified and properly identified,
9.53the Plaintiff provided the Defendant with further medical certificates certifying him unfit for work from 13 October until 3 November 2003, 3 November to 24 November 2003, 24 November to 15 December 2003, 15 December 2003 to 11 January 2004, 12 January to 25 January 2004, 26 January to 15 February 2004, 16 February 2004 to 14 March 2004, 13 April to 27 April 2004 and 28 April to 30 June 2004,
9.54in October 2003 the Plaintiff was unwilling to participate in a grievance process,
9.55by email dated 4 November 2003, the solicitors representing the Plaintiff, D'Angelo & Partners, advised the Defendant that the Plaintiff only wished to pursue his workers compensation claim at that time and not ‘deal with any peripheral aspects’. The solicitors stated that the Plaintiff was not fit for work or to pursue his ‘grievance complaint’ at that time,
9.56in November 2003 the Plaintiff sought to expand his complaints by complaining about not being permitted to use the Defendant's money to buy a digital camera,
9.57on 17 November 2003 accompanied by a representative of the NTEIU, the Plaintiff advised Bruce Ridley that he would concentrate on his worker compensation claim and did not wish to get involved with full investigation of his grievance issues,
9.58in November 2003 the Plaintiff believed that he was unfit to pursue the grievance process,
9.59in May 2004 the plaintiff sought to extend his complaints by complaining about calculation of his leave entitlements,
9.60by email dated 15 June 2004 to Bruce Ridley, the Plaintiff advised that he now wanted to pursue his grievance complaint after he had made a submission to ‘the Formal Federal Industrial Enquiry’,
9.61by letter dated 25 June 2004, the Plaintiff sought to expand his complaint by complaining about senior management of the Defendant and his leave entitlements,
9.62by letter dated 25June 2004, the Defendant without concession on its part as to liability, agreed to settle the Plaintiff's claim for leave and did so by making a payment to the Plaintiff,
9.63by email dated 5 July 2004, the Plaintiff advised Bruce Ridley that he wished to only proceed with his grievance about leave entitlements rather than the initial grievance that had been lodged in May 2002,
9.64on 7 July 2004, Bruce Ridley sought from employees of the Defendant responses to the grievance about leave entitlements,
9.65by letter dated 12 July 2004, the Plaintiff sought to have all his grievances investigated and alleged that the Defendant was holding up the investigation,
9.66on 12 July 2004, pornographic material was found on the computer owned by the Defendant but supplied to the Plaintiff for work purposes,
9.67by letter dated 15 July 2004, the Defendant's Vice Chancellor advised the Plaintiff that:
•he had been advised since May 2002 to precisely identify the issues complained about in a full and coherent submission;
•on each occasion that the Defendant had sought to restart the grievance process, the Plaintiff had advised he was not well enough to do so and was concentrating on his workers compensation claim,
9.68in the same letter, the Vice Chancellor sought confirmation from the Plaintiff that he would now become engaged in the grievance resolution process and assemble the necessary documentation to substantiate his claims,
9.69by letters to the Plaintiff dated 27 July, 13 August and 27 August 2004, the Defendant reported the discovery of the pornographic material and sought the Plaintiff’s response,
9.70by email dated 23 August 2004 to Bruce Ridley, the Plaintiff advised that he would not be dealing with his 'major grievance and victimisation claim' until the Defendant restored his salary and he was better in health,
9.71on 23 September 2004, Professor Peter Lee advised the Plaintiff that he would recommend to the Vice Chancellor that the Plaintiff be dismissed for serious misconduct,
9.72by letter dated 29 September 2004 from the Vice Chancellor, the Plaintiff was dismissed from the Defendant's employment,
9.73by application lodged with the Australian Industrial Relations Commission (AIRC) on 9 November 2004, the Plaintiff alleged his dismissal was harsh, unjust and unreasonable,
9.74by decision dated 22 March 2006, the AIRC dismissed the application,
9.75by decision dated 25 September 2006, the Full Bench of the AIRC refused the Plaintiff leave to appeal the AIRC decision and dismissed the appeal.

The grievances raised by the plaintiff in evidence remain the focus of this part of the trial not the alleged behaviour associated with them. The documentation referred to in the statement of claim is correctly recorded as having been sent or received but the perspective that the plaintiff places on it has not been established.
The defendant responds to paragraph 12 of the statement of claim:
10.The Defendant denies that the Plaintiff was bullied, harassed or victimised as alleged in paragraph 12 of the Statement of Claim or at all and says that:
10.1At all material times from September 2002 the Plaintiff was suffering from a depressive mental illness that was caused by his response to being stood down from teaching duties and not by any breach of a duty of care and, contrary to the facts, he perceived the failure of staff members and others to act in conformity with his wishes or demands to be bullying, harassment or victimisation,
10.2From and after 2 September 2002, after he was stood down from teaching duties, the Plaintiff did not attend the Defendant’s campus to perform work duties of any material significance or to engage with staff or students in the course of performing work duties,
10.3From and after 24 February 2003 the Plaintiff was certified totally unfit for work,
10.4From 24 February 2003 until he was dismissed on 29 September 2004 the Plaintiff continued to be employed by the Defendant but he was absent from work and accordingly the Defendant was entitled to ask the Plaintiff when he anticipated he would return to his work duties,
10.5From and after 24 February 2003 the Defendant was entitled to manage its research funds and its office space and make decisions about the future use of those assets against the wishes or demands of the Plaintiff,
10.6In November 2003 Prof Lee authorised payment of the cost of the Plaintiff’s ticket to attend the Premier's Science Awards as an award recipient,
10.7The Defendant was entitled to dismiss the Plaintiff from his employment and the Plaintiff is bound by and cannot challenge directly or collaterally the findings of the AIRC in Christos v Curtin University of Technology (Australian Industrial Relations Commission, PR970172, 22 March 2006), and upheld on appeal, that:
Curtin argues that from January 2003 the plaintiff was not engaging in work in the course of his employment. Therefore no relevant duty of care was owed by Curtin from and after February 2003.
This submission must be rejected. The case upon which Curtin relies, Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616 does not assist. The present facts are not, as in Stavar, novel circumstances [102].
The plaintiff and Curtin were bound by a contract of employment. He was variously on annual leave, on long service leave, or sick leave but the employment contract subsisted.
The actions of Curtin staff that affected the plaintiff continued during the plaintiff's absence and may fairly be regarded as part of the plaintiff's employment even if they did not lead to a breach of duty of care.
The plaintiff said in his evidence and in his emails that he had done some work during that period, chiefly in relation to his book but also research.
I hold that the plaintiff's absence on leave did not diminish Curtin's duty of care towards him.

Breach of the implied terms of the contract claim

The plaintiff pleads:
13.The Defendant and its staff breached the implied terms of the Contract of Employment agreement by:
(a)Not addressing or resolving the Plaintiff's grievances in accordance with the terms of the contracts or the Defendant's grievance procedures;
(b)Not allowing the existing working arrangements to continue while the grievances were unresolved and in failing to take no action to prejudice or threaten the peaceful resolution of the grievance;
(c)Not providing a safe and healthy work environment to the Plaintiff not co-operatively working with the Plaintiff and not implementing strategies to reduce work related stress on the Plaintiff;
(d)Not providing suitable alternative duties for a defined period to facilitate the rehabilitation of the Plaintiff who had suffered a compensable work injury;
(e)Not recognising and rewarding the Plaintiff for outstanding performance in achieving the goals of the Defendant;
(f)Not providing opportunities to the Plaintiff to undertake appropriate career and professional development activities;
(g)Not informing the Plaintiff of his entitlement to seek a review pursuant to clause 36.4.1 of the Academic Staff Agreement.
(h)Failing to take any or positive steps to address or resolve the Plaintiff's grievances in accordance with the Defendant’s grievance procedures and giving the Plaintiff a reasonable opportunity to have those grievances resolved before the termination of his employment.

Breach of duty of care claim

14.Further and in the alternative, the Defendant and its staff negligently breached the common law duty of care owed to the Plaintiff and pleaded in paragraph 8 herein.
Particulars
(a)Failing to address or resolve the Plaintiff's grievances in accordance with the terms of the contracts or the Defendant's grievance procedures;
(b)Failing to appoint an independent investigator with appropriate terms of reference;
(c)Failing to allow the existing working arrangements to continue while the grievances were unresolved;
(d)Failing not to prejudice or threaten the peaceful resolution of the grievances;
(e)Failing to provide a safe and healthy work environment to the Plaintiff;
(f)Failing to co-operatively work with the Plaintiff to implement strategies to reduce work related stress on the Plaintiff;
(g)Failing to properly investigate the complaints of bullying harassment or victimisation pleaded herein;
(h)Failing to take any or proper steps to prevent the bullying harassment or victimisation of the Plaintiff by other members of its staff;
(i)Failing to properly instruct or counsel its staff not to bully harass or victimise other members of staff;
(j)Failing to supervise its staff adequately or at all;
(k)Failing to have or adopt any or adequate work anti-bullying policy at the workplace;
(l)In the alternative to paragraph 14 (k), failing to adhere to any anti-bullying policy at the workplace that the Defendant may have had in place;
(m)Disregarding or acting contrary to medical advice received by the Defendant concerning the Plaintiff's health and the steps recommended to assist the Plaintiff to recover his health;
(n)Failing to provide a safe workplace to the Plaintiff.

15.Further and in the alternative the Defendant and its staff breached their statutory obligations owed to the Plaintiff pleaded in paragraph 9 herein.
Particulars
The Plaintiff repeats and relies upon all of the matters pleaded in paragraphs 10, 12 and 14 hereof.

The damages claim

16.As the result of the matters aforesaid the Plaintiff suffered injury loss and damage.
Particulars of Injury
(a)Adjustment Disorder with mixed anxiety and depression;
(b)Major Depressive Disorder and Anxiety Disorder;
(c)A 30% permanent psychiatric impairment.

In response to these claims the defendant denies paragraphs 13 and 14. It denies paragraph 15 and says that it at all times complied with its statutory obligations. It denied loss or damage and says:
14.The Defendant denies that the plaintiff suffered any injury, loss or damage as alleged in paragraphs 16, 17, 18, 19, and 20 of the Statement of Claim, denies that any injury, loss or damage was caused by any allegedly negligent act or omission by the Defendant or its employees, and says that any psychiatric injury was:
14.1First suffered by the plaintiff more than 6 years before the date when the plaintiff issued his writ in this action;
14.2Caused in September 2002 by presentation of complaints by students and his response to being stood down from teaching duties, and propagated in the context of the end of the Plaintiff’s marriage, by his preoccupation with his complaints about the Defendant and its employees, the end of another relationship, and ongoing litigation with the Defendant.
I have set out the pleadings because in considerable measure each party relies on the same facts and conduct to support their respective cases. It is the interpretation of that conduct that forms the conflict.
I have not reproduced the extensive answers to further and better particulars.
Despite the manner in which the plaintiff approached the trial I shall, as far as possible, confine my fact‑finding and review to the evidence whether there was a breach of contract and/or a breach of a duty of care in relation to the grievance policy protocols. The actual merits of the grievance, as I repeat again, have no place to play in this action except in so far as they may allege a breach of a duty of care by Curtin when various staff members bullied, harassed and victimised the plaintiff as asserted in particulars to paragraph 12 of the statement of claim.
The plaintiff faces a further difficulty arising out of this to which I have already referred. Even if Curtin's actions amounted to a breach of contract or breach of a duty of care, it does not follow that such a breach will necessarily lead to a recovery of damages. From the language of the plaintiff's witness statements, and his responses in searching cross‑examination, together with his voluminous correspondence which speaks for itself, it is more probable than not, in fact highly probable, that it was not Curtin's slowness or lack of resolution that caused any of the plaintiff's damage but the lack of a resolution which he favoured, one which completely exonerated him.
My examination of Curtin's response during the period prior to February 2003 will be fairly cursory because even if Curtin was in breach during that period, any claim is time barred. Of course, if I was satisfied that Curtin's actions prior to 20 February 2003 showed a breach of duty to the plaintiff, which was a course of conduct which continued after 20 February 2003, that would be a different matter. But I do not.

The plaintiff's evidence

As is commonplace, the witness statement of the plaintiff, and other witnesses who had made one, was tendered as the witnesses evidence‑in‑chief. Much of the oral examination consisted of tendering the many exhibits referred to in the witness statement.
It is convenient to start with the evidence of the plaintiff (exhibit A) because many of the exhibits were tendered during the course of his oral evidence. Some exhibits are of a formal nature such as those offering and accepting employment. Others relate to matters which are not relevant, particularly those concerning the allegations giving rise to grievances. Many of the emails from the plaintiff to others, it must be said, do not portray him in a favourable light. The defendant makes much of this in its submissions asserting that the evidence shows numerous examples of the plaintiff's sense of self‑importance or entitlement or his pettiness and that the language he used in some communications was exaggerated, conclusory, labelling (eg harassment or bullying), petulant or abusive. It is said they are indicative of the plaintiff rather than the defendant's staff being the bully. This however is irrelevant.
In these submissions the defendant has fallen into the same trap that it accuses the plaintiff of falling into. The relevant issue was whether the plaintiff had a grievance within the meaning of the grievance policy and whether Curtin failed to respond to that grievance in accordance with the policy. The plaintiff's language towards others is not relevant except insofar as it might itself be a breach of the policy and therefore inform the nature of Curtin's timely response.
If I had found that the plaintiff was bullied, his responses would not have lessened Curtin's liability.
The plaintiff gave evidence of his background. To summarise that background so far as is relevant, he received a Bachelor of Science with honours from the University of Western Australia in 1977 and a Doctorate of Philosophy from Oxford University in 1981. He has won numerous prizes for academic excellence.

Rulings on the plaintiff's evidence (Exhibit A)

The defendant made detailed objections to portions of the plaintiff's statement (exhibit A) and to evidence of other witnesses.
I indicated that I would not rule on the objections to evidence at the commencement of the trial because I was unsure of the relevance of the events which occurred outside the limitation period.
I have now considered the objections and the plaintiff's responses. The rulings I make in consequence, render evidence obtained in cross‑examination of the plaintiff about matters ruled irrelevant also irrelevant. There is an overarching objection to the evidence proposed to be given by the plaintiff about events that occurred prior to 20 February 2003. That date has significance because the plaintiff did not commence this action until 20 February 2009. Under the provisions of the Limitations Act s 38, damages for tortious conduct or breach of contract which occurred prior to 20 February 2003 is irrecoverable. That objection is broadly sustained.
I will use the plaintiff's headings and numbering in Exhibit A.

Background

Paragraphs 1 to 39 are admissible as to background and content.
Paragraph 40 commences the plaintiff's litany against Professor Caccetta, none of which has any relevance other than to establish that there was animosity between the men. The whole of exhibit A, from paragraph 40 to 481 is irrelevant and inadmissible.

Events leading up to me lodging a grievance complaint in May 2002 and events thereafter until September 2003 (Exhibit A, page 65)

Bundle 1 - Trying to put some items in the agenda for a staff meeting and disabling my telephone from std dialling

Paragraphs 482 to 537 are irrelevant and therefore inadmissible. They make allegations about actions and conversations that fall outside the limitation period. They are not part of the plaintiff's pleaded case. The objection to admissibility is upheld. Except where otherwise indicated, this is the reason for my rulings on admissibility that follows.

Bundle 2 - Other examples of Lou Caccetta not responding to my emails [538 ‑ 543]

This evidence is irrelevant and inadmissible.

Bundle 3 - Discussion about departmental library [544] - [561]

This evidence is irrelevant and inadmissible.

Bundle 4 - Request for nomination for innovative teaching practices award [562] ‑ [597]

Paragraphs 562 ‑ 591 are irrelevant and inadmissible.
Paragraph 592 is admissible.

Bundle 5 - Discussion on how to use excess departmental funds [598] - [607]

This evidence is irrelevant and inadmissible.

Bundle 6 - Lodging my formal grievance complaint [608] - [629]

This evidence is generally admissible. I ignore as irrelevant expressions of personal opinion, for example:
Over the next few months Professor O'Connor increased his attacks on me' [618].
I also ignore allegations that are not in the formal complaint (exhibit 285).

Bundle 7 - Being bullied by Brian O'Connor to sign a consultancy and intellectual property agreement [630] - [641]

This evidence is irrelevant and inadmissible. It also contains significant hearsay.

Bundle 8 - My personal web pages [642] - [649]

This evidence is irrelevant and inadmissible.

Bundle 9 - Trying to organise some leave when marriage was ending [650] ‑ [661]

This evidence is irrelevant and inadmissible.

Bundle 10 - Trying to get a decent office chair [622] - [679]

This evidence is irrelevant and inadmissible.

Bundle 11 - Deducting one day of pay from me when I was not absent from work [680] ‑ [708]

This evidence is irrelevant and inadmissible.

Bundle 12 - Harassment over Internet charges [709] - [726]

This evidence is irrelevant and inadmissible.

Bundle 13 - Absence from a teaching and learning seminar [727] - [738]

This evidence is irrelevant and inadmissible.

Bundle 14 - Stood down over teaching complaints [739] - [792]

The issue surrounding the plaintiff's suspension over student complaints about his teaching is an important event in the plaintiff's history. The defendant asserts and the plaintiff denies that it was a proximate cause of the plaintiff's psychiatric disablement and adjustment disorder.
These paragraphs are generally admissible. To the extent to which they contain hearsay and opinion I have ignored those portions.
Paragraphs 784 to 792 are irrelevant and inadmissible.

Bundle 15 - On the matter of academic freedom [793] - [818]

These paragraphs are irrelevant and inadmissible.

Bundle 16 - Request to get copies of the SUE student responses and FOI application [819] - [850]

These paragraphs are irrelevant and inadmissible.

Bundle 17 - I win the Curtin Student Guild Excellence in Teaching Award [851] ‑ [866]

These paragraphs are irrelevant and inadmissible.

Bundle 18 - Enter Jo Keenan and Jane den Hollander [867] - [894]

These paragraphs are irrelevant and inadmissible. Some also contain inadmissible opinions and conclusions.

Bundle 19 - Trying to organise some sick leave, annual leave and long‑service leave [895] - [944]

These paragraphs are irrelevant and inadmissible except for paragraphs [943] and [944] as the fact that the plaintiff was on leave from the 20 February 2003 is relevant.

Bundle 20 - Leading up to external investigation and cancellation thereof [945] ‑ [1005]

Matters before 20 February 2003 are strictly irrelevant and inadmissible. However, they do give some context to matters within the limitation period.
This bundle and the balance of the bundles contained in exhibit A largely reproduce or refer to written documents such as emails. The best evidence is contained in the documents themselves. To the extent that the statement contains opinion and conclusions they are inadmissible. However, statements of the plaintiff feeling stress and anxiety are admissible. So are the plaintiff's account of conversations that he had with Curtin officers.

Bundle 21 - The MIRI notes issue, leading up to meeting with Peter Lee and Ron Jones [1006] - [1037]

These paragraphs are irrelevant and inadmissible.

Bundle 22 - Meeting with Peter Lee and Ron Jones [1038] - [1055]

These paragraphs are irrelevant and inadmissible. They also contain much irrelevant opinion, comments and conclusions.

Bundle 23 - Left over air ticket to Queensland [1056] - [1071]

Although these paragraphs commence just outside the limitation period, the matters discussed continue past 20 February 2003. The paragraphs are admissible.

The balance of the plaintiff's statement (exhibit A)

The balance of the plaintiff's statement deals with matters which are within the limitation period and are either pleaded or relevant to the pleadings paragraphs 10 and 12 of the amended statement of claim.
I have considered whether the plaintiff's evidence as to what he describes as bullying, harassment and victimisation prior to 20 February 2003 can be relevant and admissible to explain conduct and actions after that date and within the limitation period.
After all, actions which are apparently lawful and regular may take on a sinister aspect if viewed against a back drop of sustained bullying.
However, I have concluded that the evidence is not available for that purpose.
Because it is outside the limitation and because the amended statement of claim is not framed to encompass the truth of the assertions, Curtin is not required to meet and respond to them.
The essential claim in respect of the period prior to 20 February 2003 is that the plaintiff instituted a grievance, then further grievances which were not dealt with at all as they should have been under Curtin's grievance policy. The failure to deal with them was a breach of contract or alternatively negligence which continued into the limitation period. That remains the issue, not whether the grievances had substance.

I was impressed by the evidence of Dr Terace, including his criticisms of Dr Risbey and Dr Manners. Dr Terace was a thoughtful witness who responded to questions with at times lengthy explanations. These helped me to understand his reasoning process to the various issues put to him and I gained considerable understanding from him.

(h) Dr Sean Murray

Dr Murray is a clinical psychologist who worked as a counsellor and in that capacity was consulted by the plaintiff. In a report undated (exhibit 991) he said:
I am of opinion that George's condition will only improve once his grievance and workers compensation claim are resolved. … The sole purpose of the counselling sessions has been to support George during his grievance process. Much of the time has been spent on containing George's stress levels and helping him function during this difficult time.
The plaintiff sent an email to Dr Murray on 10 July 2003 (exhibit 819):
hi sean, i'm not coming in to see you today. i'm too sick. i think my body has just collapsed with all that is going on around me. i cannot believe the latest news from riskcover. i'm wondering now if i'm stressed or if i have just gone mad. … i can't believe what is happening. i'd be happy to talk to you on the phone if you feel i should. feel like i'm all alone and i have nowhere to turn.
george
The plaintiff described his feelings at the time of this email in evidence as:
I almost felt like I was in a sort of like, I'm a catatonic (ts 177).

The Civil Liability Act 2002 (WA) and Workers' Compensation and Injury Management Act 1981 (WA)

Curtin raised the Civil Liability Act 2002 (WA) for the first time in its closing submissions dated 4 July 2014 noting however that it did not appear to be relevant.
In reply to the plaintiff's claim in submissions dated 18 July 2014 Curtin purported to accept that the Civil Liability Act would apply to any new and distinct recognisable psychiatric illness on or after 1 December 2003.
The plaintiff's responsive submissions in reply dated 21 July 2014 challenged Curtin's right to raise the Civil Liability Act as it had not been pleaded or relied on before.
It is not strictly necessary for Curtin to plead a matter of law. The plaintiff had and used the opportunity to make a substantive response.
The attribution of liability must be made according to the appropriate legal principles, wherever those principles may be found and (subject to fairness and a right to be heard) whether or not parties have raised them.
The Civil Liability Act by s 3(a) excludes pt 1A, pt 1B, pt 1C, pt 1D, pt 1E and pt 2 (other than s 10A and div 4) from an award of damages to which the Workers' Compensation and Injury Management Act 1981 (WA) pt IV div 2 applies the class of damages referred to in s 93B(3a) of that Act.
The Civil Liability Act pt 1B is entitled 'Mental Harm: duty of care'. Section 5S provides:
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
…
(4)This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
Section 5T is entitled 'Liability for pecuniary loss for consequential mental harm':
A court cannot make an award of personal injury damages for pecuniary loss for consequential mental harm unless the harm consists of a recognised psychiatric illness.
It is arguable that s 5S is more restrictive than the common law: cfTame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317.
The Workers' Compensation and Injury Management Act pt IV div 2 is entitled 'Constraints on awards of common law damages'. Section 93B(1):
This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of an injury suffered by a worker, or a noise induced hearing loss suffered by a worker that is not an injury, if:
(a)it was caused by the negligence or other tort of the worker's employer; and
(b)compensation has been paid or is payable in respect of it under this Act, or would have been paid or be payable but for section 22.
I am satisfied that the plaintiff was a worker within the meaning of the Workers' Compensation and Injury Management Act and that fact is essentially admitted in the reamended defence pars 2 and 3.
The defendant argues that the plaintiff did not suffer an 'injury' as defined under s 5. 'Injury' means:
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
…
(d)the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e)a loss of function that occurs in the circumstances mentioned in section 49.
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
Subsection 4 provides:
For purposes of the definition of injury, the matters are as follows:
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c)the worker's expectation of -
(i)a matter; or
(ii)a decision by the employer in relation to a matter,
Referred to in paragraph (a) or (b).
I do not consider that under the Workers' Compensation and Injury Management Act definition of 'injury' removes the plaintiff from the provisions of that Act.
Dr Manners considered that the plaintiff had a 30% permanent disability and the plaintiff's election was registered by the Worker's Compensation Directorate on 11 November 2009.
Both parties agree that the plaintiff is entitled to an unrestricted award of damages.
They disagree as to whether pt 1 of the Civil Liability Act applies.
In view of the facts that I have found, it is not necessary for me to finally determine the question. If the Civil Liability Act applies in an unrestricted form, the general principles in pt 1A s 5B and s 5C sufficiently reflect the common law so that there would not be a substantively different approach.
While the provisions of s 5S might, in some circumstances, cause a different end result, it would not do so here. Curtin was aware of the plaintiff's mental state and that he was from 20 February 2003 not perhaps a person who could be described as 'of normal fortitude'. However, that does not mean that they ought to have foreseen that he might suffer a recognised psychiatric illness if reasonable care was not taken.

Curtin's duty of care

In paragraph 7 of its reamended defence Curtin admits that it owed to the plaintiff a duty to take reasonable care to avoid conduct that it could reasonably foresee may cause injury to the plaintiff.
In the classic statement from Wyong Shire Council v Shirt (1980) 146 CLR 40 Mason J said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors (47).
The plaintiff must prove that the risk of psychiatric injury had to be reasonably foreseeable.
If Curtin's actions in failing to progress the plaintiff's grievance complaint, contrary to my view, was a contributing cause to the psychiatric disorder those actions made no difference to the eventual outcome of psychiatric disability.
The operative cause of the adjustment disorder and subsequent depression was the suspension in September 2002 exacerbated by the decline of the workers' compensation claim and further exacerbated by the termination of the plaintiff's employment. The occurrence of these events dwarfs any contribution to the plaintiff's present disability that the failure to expeditiously resolve the grievances could have contributed.
By 2006 the plaintiff was under a psychiatric disability such that he was unlikely to have returned to full time employment and he remains in that condition.
None of Curtin's witnesses were cross‑examined as to whether they knew or had cause to suspect that the plaintiff would suffer a psychiatric injury. It may be accepted that they knew the plaintiff was stressed and anxious through reports from Dr Choy, Ms Erica Anderson and Dr Sean Murray among others, but the evidence does not permit a finding beyond that. Dr Terace, whose evidence I accept, did not regard the various offences about which the plaintiff complains are likely to lead to a psychiatric disorder.
The state of the evidence has parallels with Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44:
It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant [34].
Callinan J:
The fact however that a psychiatrist placed in the same position as an employer might have foreseen a risk of psychiatric injury, does not mean that a reasonable employer should be regarded as likely to form the same view (65).
In Hegarty v Queensland Ambulance Service [2007] QCA 366 [41] Keenan J stated:
41.... special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension.
...
43.The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff's problems.
…
47. In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that 'the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.' Further, 'litigious hindsight' must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.
I find that Curtin through its staff did not bully, victimise or harass the plaintiff. Whether there is a breach of a duty of care must depend on a finding that Curtin's responses to the plaintiff were appropriate and, in the circumstances, reasonable. In these circumstances, an inference cannot be drawn that the risk of psychiatric injury was foreseeable.

The findings that Curtin is not liable

I have made findings during the course of this judgment.
The suspension in September 2002 was a seminal event in the development of the plaintiff's adjustment disorder. It caused him great distress at the time and prompted visits to Dr Choy. It was the nominated event for his workers' compensation claim. Its effects cannot be underestimated even though it was accompanied with an assertion of workplace stress.
There is an element of reconstruction in the plaintiff's evidence and recall to psychologists to the effect that the suspension was not all that distressing as he knew there was nothing of substance in the complaints. He thought Professor O'Connor had engineered the complaints.
The failure by Curtin for whatever reason to deal with his grievances in a timely manner was as Dr Terace acknowledges, distressing and upsetting. But I find it was not the operative cause of the adjustment disorder. That was triggered by the suspension. The plaintiff effectively never returned to work after the suspension. It clearly had enormous impact.
The conclusion I have reached as to the cause of the plaintiff's psychiatric disablement makes it unnecessary to examine closely Curtin's actions in progressing or failing to progress the grievance dispute during 2002.
I have found that initially Professor Lee did not follow the grievance protocol. He did not speak with Professor Caccetta or Professor O'Connor.
Mr McGinniss may have moved more slowly than he should in processing the grievance procedure.
The plaintiff began to expand his grievance to other people in 2002, including Professor Lee. This would have made it difficult to deal with his original claim unless there was a concerted effort by the plaintiff and Curtin together to segregate the grievances and attempt to resolve each one separately. The plaintiff did not. He simply added grievance to grievance.
But none of this in the end assists the plaintiff. Even if he made good his claim that Curtin breached the implied terms of its contract with him during 2002 and damage thereby resulted, that claim is time barred.
The plaintiff can only succeed if he is able to establish that any breach of the implied terms or failure of duty of care continued beyond 20 February 2003 and also that the breach or failure was a cause or made a contribution to the plaintiff's psychiatric disablement.
I am not able to find that Curtin's actions were either a breach or a cause.
The issue of an independent mediator was floated to the extent that Mary Power was approached.
Independent mediation is not provided for in the grievance policy so that the refusal is not a breach.
From 20 February 2003 it is a fact that the grievances did not proceed until the plaintiff was dismissed in September 2004.
At various times the opinion of others as to the grievances proceeding were canvassed. For example, Dr Terace thought although distressing it would be helpful.
The predominant motive in Curtin's staff, I find, was that the plaintiff should not be asked to do any work‑related task while he was on leave. I find in the minds of relevant decision‑makers this was out of a concern for the plaintiff who was to their knowledge, undoubtedly in a fragile state.
Hindsight is always of course perfect sight and in assessing a breach of a duty of care it is important not to replace foresight with hindsight.
In retrospect, the decision to suspend the grievance process pending the return of the plaintiff to employment may have been a wrong decision. But not every wrong decision is a negligent decision.
I find that Curtin's actions in failing to progress the grievance while the plaintiff was on leave is not a breach of its duty of care to the plaintiff nor a breach of any implied condition of employment.
The correspondence and emails flowing between the plaintiff and Curtin tell a story of a plaintiff who kept expanding his grievances and adding persons each time he disagreed with them.
The Curtin responses and communications between staff show an organisation concerned about the plaintiff's fragile state and wanting to resolve outstanding issues if possible.
The plaintiff eventually lost faith with Mr Liam McGinniss, the first grievance officer and Mr Bruce Ridley, his replacement.
At different stages the plaintiff rejected an independent investigator and then insisted upon an independent investigator.
The interchange between Jo‑Anna Keenan and Ron Jones with the plaintiff was (apart from one testy email from Ms Keenan) appropriate.
The plaintiff blew hot and cold about participation in the grievance process at times being unwilling to participate and other times wanting the process expedited. I accept that the overall motivation of the plaintiff was to have his grievances dealt with (and be successful) and that any hesitation was probably brought about by his mental condition.
However, it was not unreasonable for Curtin to be uncertain from time to time as to what the plaintiff wanted.
I have made findings in the course of this judgment and now both summarise them and complete necessary findings.
It is appropriate to let the plaintiff, who will be disappointed by this judgment, know that his case has been decided on the balance of probabilities. That is, I have decided the case where appropriate on which is the more probable version of fact.
Where necessary the standard by which such matters as negligence arise, I have applied to the conduct about which the plaintiff complains the standard of conduct of a reasonable and prudent person.
Many of the plaintiff's pleaded allegations relate to events allegedly occurring before 20 February 2003.
Any cause of action which arose before 20 February 2003 had to have been commenced within six years of the cause: Limitation Act s 38(1)(c)(v) and (vi).
The plaintiff's pleaded case in respect of events occurring prior to 20 February 2003 must be dismissed.
Most of the evidence in respect of those events is irrelevant. I have taken some account of the evidence in respect of key events and as context.

I have also considered, possibly without power, whether the evidence though inadmissible to found a cause of action is nevertheless relevant as to whether Curtin staff or any of them embarked on a course of conduct of bullying, harassment and intimidation which continued unabated beyond 20 February 2003.
This evidence, even when considered with all the other evidence, does not lead to a finding that the plaintiff was bullied, harassed or victimised.
These are my findings in summary:
•From 2002 and onwards Curtin had a grievance policy which bound both Curtin and its staff.
•The plaintiff lodged a formal grievance in May 2002.
•Part of the grievance policy required Professor Lee to speak with Professors Caccetta and O'Connor but he did not do so.
•The grievance was not resolved within the timeframe proposed and Curtin was at fault. However, this fault occurred in 2002 and is time barred.
•The plaintiff did not just want his grievances resolved. He wanted and believed they would be resolved in his favour.
•On 2 September 2002 the plaintiff was lawfully suspended from teaching duties by Professor Lee.
•There is no evidence that Professor O'Connor improperly interfered with this process.
•The suspension was the cause of the plaintiff's adjustment disorder.
•That disorder has continued until the present and is now chronic.
•Professor Lee's investigation determined that no further action should be taken in respect of the plaintiff apart from one minor matter for which he was counselled.
•Professor Lee suggested to the plaintiff that he should not return to teaching duties for the balance of the semester but concentrate on research.
•Apart from sporadic work, mainly on chapters of a book, the plaintiff has never returned to work at Curtin.
•Commencing from 2003 Curtin had acceptable reasons for not progressing the original or added grievances.
•The plaintiff was on long service leave. It was reasonable and did not amount to a breach of contract or negligence for Curtin to defer progress of the grievance until the plaintiff had returned to work.
•Outside the limitation period, the plaintiff and some Curtin staff contemplated appointment of an independent investigator. This did not occur but Curtin was neither in breach of contract or negligent.
•The plaintiff lodged a workers' compensation claim on 7 March 2003 and was certified unfit for work.
•Thereafter he remained unfit for work until his employment was terminated on 28 October 2004.
•It was not a breach of the pleaded duty of care for Curtin to decline to let the plaintiff undertake work related matters while he was certified as totally unfit for work.
•Curtin staff did not act in concert to adversely affect the plaintiff. Exchange of information between staff in relation to the plaintiff does not, without more, constitute acting in concert to achieve an unlawful purpose. There is no inference capable of being drawn that one or more Curtin staff intended to cause the plaintiff to be bullied, harassed or victimised.
•Despite his perceptions, on the balance of probabilities, the plaintiff was not bullied, harassed or victimised within the limitation period.
•In particular:
•The refusal of an airline ticket to attend an event at Bond University while the plaintiff was certified unfit for work was a reasonable management decision made without malice. The plaintiff accepts it was a reasonable approach for Curtin to take.
•The refusal to find a ticket to the Premier's Awards falls in the same category although eventually approved.
•The refusal to allow funds to be spent on a camera was a legitimate management decision not victimisation.
•The dispute about the plaintiff's leave entitlements was a misunderstanding as to the precise situation between the plaintiff and Ms Keenan. It does not demonstrate bullying or victimisation on her part. Curtin, although without prejudice, eventually paid the plaintiff his leave entitlements.
•The various actions of Mr Jones, especially his requests for details of the plaintiff's return to work, were not bullying or victimisation or harassment. They were ordinary legitimate management requests. While some of Mr Jones' comments in emails were flippant, they do not indicate malice towards the plaintiff.
•The request for the plaintiff to vacate his office was lawful and reasonable. To the extent that it gave rise to a legitimate grievance, Mr Ridley mediated a satisfactory compromise.
•The actions of Curtin's staff during the period 20 February 2003 to October 2004 did not materially cause or exacerbate the plaintiff's psychiatric disability.
•The operative cause of the plaintiff's psychiatric disability was his suspension on 2 September 2002.
•The fact that the plaintiff perceived (unreasonably) that he was being harassed, victimised and bullied may have contributed to his psychiatric disorder.
•The plaintiff's condition was exacerbated by the denial of his workers' compensation claim.
•His condition worsened thereafter and was exacerbated by the termination of his employment on 28 October 2004.
•The principles of res judicata prevent any reconsideration of the lawfulness of the plaintiff's termination. The AIRC decision that the termination was lawful cannot be traduced in this action.
•Relevant Curtin staff knew from 20 February 2003 that the plaintiff was stressed and on sick leave.
•However, the risk that the plaintiff might develop or exacerbate a psychiatric disorder or illness was not reasonably foreseeable by Curtin.
•Curtin did not breach its duty of care to the plaintiff. The actions taken by Curtin over the relevant period were reasonable responses. For most of the period, the plaintiff was certified as unfit for work and Curtin reasonably exercised its duty of care by not permitting the plaintiff to work during the periods he was so certified.
•Enquiries made of him from time to time did not breach the duty of care nor did they demonstrate bullying.
The plaintiff's pleaded case depends for success on findings of bullying, victimisation and harassment.
These are pleaded as Curtin's breach of duty of care and risk of foreseeably psychiatric injury.
These allegations fail because an objective examination of the evidence does not support them.
A finding of foreseeability of injury is inextricably linked in this case to a finding of bullying, victimisation and harassment.
Absent such behaviour, the objective actions of Curtin evidenced by the witnesses and the documentation does not permit a finding that those actions carried with them the foreseeable risk of psychiatric injury.

Assessment of damages

It is often useful for a judge to provisionally assess damages in a case where the plaintiff's claim on liability has been dismissed in order to save possible time and expense later should the judge be shown to have erred in a conclusion of liability.
However, in view of my findings on liability and in particular the complete rejection of the substantial elements of the plaintiff's case that he was bullied, harassed and victimised, I am unable to undertake any meaningful assessment of damages.
A theoretical assessment of damages on the basis that no such bullying occurred but there was somehow a breach of duty by Curtin would result in an award of damages so markedly less than if damages were assessed on the basis that bullying, victimisation and harassment did occur as to make the exercise of no further utility.

Conclusion

The plaintiff's claim is dismissed.