Dunstan v Human Rights and Equal Opportunity Commission (No 2)

[2005] FCA 1885

FEDERAL COURT OF AUSTRALIA

Dunstan v Human Rights and Equal Opportunity Commission (No 2)
[2005] FCA 1885

DEFAMATION – whether communications reporting on the views of co-workers about the applicant’s suitability for particular work were in the circumstances defamatory – whether the communications were subject to qualified privilege – whether malice on the part of the publisher established – claim dismissed

MISFEASANCE IN PUBLIC OFFICE – communications reporting on suitability of applicant to return to particular work location – whether communications actuated by malice or undertaken recklessly indifferent to existence of power to make them – claim dismissed

DISCRIMINATION – applicant complained of sex harassment by co-worker – both applicant and co-worker relocated to different work locations – other workers in applicant’s work area reluctant to him returning there – claim of sex discrimination against officers of employer and employer for treating applicant as male differently from treatment which would have been given to female in same or similar circumstances – claim dismissed

DISCRIMINATION – inquiry into claim of sex discrimination not continued as complaint lacking in substance – elapse of three years and nine months between complaint and decision – decision of officer to refer complaint for public inquiry – whether applicant denied procedural fairness – whether delay constitutes denial of procedural fairness – whether decision of officer (not Sex Discrimination Commissioner) to refer complaint for public inquiry effective

Administrative Decisions (Judicial Review) Act 1977
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1976 (Cth)
Human Rights and Equal Opportunity Act 1986 (Cth)
Freedom of Information Act 1982 (Cth)
Public Service Act 1999 (Cth)
Defamation Act 1901 (NSW)
Defamation (Amendment) Act 1909 (NSW)
Seat of Government Acceptance Act 1909 (Cth)
New South Wales Acts Application Act 1984 (ACT).

Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 considered
Kioa v West (1985) 159 CLR 550 (Kioa)
Re Pergamon Press Ltd [1971] Ch 388 considered
F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 considered
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 considered
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered
Minister for Immigration & Multicultural Affairsv Rajamanikkam (2002) 210 CLR 222 considered
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 considered
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 considered
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 considered
Sanders v Snell (1998) 196 CLR 329 at 346-350 considered
Northern Territory v Mengel (1995) 185 CLR 307 considered
Pemberton v Attorney-General [1978] Tas SR 1 considered
Tampion v Anderson [1973] VR 715 considered
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 considered
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 considered
Guise v Kouvelis (1947) 74 CLR 102 considered
Calwell v Ipec Australia Ltd (1975) 135 CLR 321 considered
Howe & McColough v Lees (1910) 11 CLR 361 considered
Musgrave v Commonwealth (1937) 57 CLR 514 considered
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 considered
Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 considered
Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 considered
Riddick v Thames Board Mills Ltd [1977] QB 881 considered

COLIN GEORGE DUNSTAN v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, HENRY PRICE, DONALD BARTLEY, JOHN GROWDER, GEOFFREY SEYMOUR and COMMONWEALTH OF AUSTRALIA

ACD 30 of 1997

MANSFIELD J
21 DECEMBER 2005
ADELAIDE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 30 OF 1997

BETWEEN:

COLIN GEORGE DUNSTAN
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

HENRY PRICE
SECOND RESPONDENT

DONALD BARTLEY
THIRD RESPONDENT

JOHN GROWDER
FOURTH RESPONDENT

GEOFFREY SEYMOUR
FIFTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
SIXTH RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

21 DECEMBER 2005

WHERE MADE:

ADELAIDE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.        The application is dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 30 OF 1997

BETWEEN:

COLIN GEORGE DUNSTAN
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

HENRY PRICE
SECOND RESPONDENT

DONALD BARTLEY
THIRD RESPONDENT

JOHN GROWDER
FOURTH RESPONDENT

GEOFFREY SEYMOUR
FIFTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
SIXTH RESPONDENT

JUDGE:	MANSFIELD J
DATE:	21 DECEMBER 2005
PLACE:	ADELAIDE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

THE CLAIMS

1. This application has taken a considerable time to come to hearing.  The reasons for the delay are referred to in Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 at [11]-[23]. It is not necessary to repeat those matters.

2. The application involves three claims.  All claims arise out of events which happened in relation to the applicant’s employment as a member of the Commonwealth Public Service (the service).  In particular, events which occurred between about 1987 and 1997 have attracted the current proceedings.  Part of that period concerns the background to the applicant’s claims, and part of it concerns the conduct which gives rise to the claims themselves.  Each of the third, fourth and fifth respondents were at all material times also employed by the service, and were the applicant’s superior officers.  The second respondent was at all material times an employee and/or agent of EASACT Australia Pty Ltd (EASACT), an organisation engaged by the sixth respondent to provide staff services to the sixth respondent as part of a program for officers working in the Australian Taxation Office (‘the ATO’).  The program was identified as an ‘Employee Assistance Program’. 

3. The issues between the parties are defined by the pleadings.  The relevant statement of claim is the amended statement of claim filed on 13 November 1998 (excluding pars 7, 8 and 9, which were not relied upon by the applicant and which were therefore struck out).  It is refined by the particulars of the ‘misfeasance in public office claim’ provided by the applicant by letter of 10 November 1998, and further by particulars of the damages claimed in the defamation claim provided by document entitled ‘Further Particulars’ filed on 21 July 2004.  The third to sixth respondents filed a defence on 27 January 1999 and the second respondent on 26 May 1999.

4. The first claim is against the first respondent under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act):

   (a)to review its conduct ‘whereby steps required by the Sex Discrimination Act 1984 have not been taken’, and to direct it to conduct an inquiry into a complaint of sexual discrimination made by the applicant;

   (b)to review and quash its decision not to inquire into certain acts, as a period of 12 months had elapsed since the alleged acts were done; and

   (c)to review and quash its decision not to continue to inquire into certain complaints, as it regarded them as lacking in substance.

5. I will call this claim ‘the ADJR claim’.

6. It is helpful to explain the basis for the ADJR claim in a little detail at this point.  On 17 September 1993 the applicant made a complaint to the first respondent of discrimination in employment by officers of the ATO, namely the third and fifth respondent, and by the sixth respondent, on the grounds of his sex and race and of sexual harassment (the sex discrimination complaint).  It followed a complaint of sex harassment made by the applicant to the ATO made on 6 September 1993 concerning the conduct of a female employee X (‘the sex harassment complaint’).  There is a long history preceding the sex discrimination complaint to which it will be necessary to refer.

7. Briefly, the applicant complained to the ATO of sex harassment by X in the workplace over many years, but in particular in the ATO workplace from 1990.  The applicant and X, at least for a time, had a complex relationship.  On 30 August 1992, it came to an end by mutual agreement, including that X would seek a transfer in her employment from the area where she and the applicant both worked, but ultimately she did not do so.  The applicant then sought the assistance of the ATO management.

8. The applicant’s sex discrimination complaint to the first respondent was that the ATO through certain officers discriminated against him in the way they addressed the then circumstances, by labelling the contact between the applicant and X as ‘a relationship’, and then by failing to take any real steps to address his concerns.  He asserted in the complaint to the first respondent that the ATO handled the matter in that way because he was male, and that if the reverse situation were the subject of a complaint (that is, a complaint of a male allegedly sexually harassing a female in the workplace) the way in which the complaint to the ATO would have been handled would have been quite different.  The applicant also referred to the fact that, by a decision made on 10 December 1992, both he and X were transferred by mid February 1993 from the area they were working.  As he was the ‘victim’, as he claimed, the ATO should not have penalised him by removing him from his normal workplace.

9. The sex discrimination complaint to the first respondent did not explain the basis for any alleged racial discrimination against him, but that emerged in the course of the first respondent’s investigation of the complaint.

10. The particular decision of the first respondent which gives rise to the ADJR claim is recorded in a letter of 2 April 1997 to the applicant.  The first respondent notified the applicant of its decision, made by Ms Zita Antonios as delegate of the Sex Discrimination Commissioner, that in respect of the sex discrimination complaint he had made against the ATO and others under the Sex Discrimination Act 1984 (Cth) (the SD Act) and in her capacity as the Race Discrimination Commissioner under the Racial Discrimination Act 1976 (Cth) (the RD Act), the first respondent had decided not to continue to inquire into his allegations.

11. The letter of 2 April 1997 gave reasons for the decision.  It also informed the applicant of his right within 21 days of receipt of notification of that decision to have the decision of the Sex Discrimination Commissioner through the delegate referred to the President of the first respondent for review.  There followed some correspondence between the applicant and the first respondent.  The applicant did not seek review of the decision notified by letter of 2 April 1997 by the President of the first respondent within the 21 day period which the Human Rights and Equal Opportunity Act 1986 (Cth) (the HREOC Act) then allowed for.

12. The first respondent has indicated that it will abide any order of the Court in respect of the ADJR claim.  The sixth respondent was added as a party on its application on 19 August 1997 to act as the contradictor to the applicant’s claims against the first respondent.

13. The second claim is against the second to fifth respondents for damages at common law for ‘defamatory publications and gestures made and distributed, with express malice’ by each of them (the defamation claim).

14. The allegedly defamatory communications comprise five primary communications.  The first three are parts of letters from the second respondent dated 17 February 1995, 11 May 1995 and 5 December 1995 published to the third respondent, and then republished by the third respondent to the sixth respondent on 23 January 1996.  The fourth one is a part of a letter from the third respondent dated 4 January 1996 to the applicant sent to the second respondent of 24 January 1996 by the third respondent, and later sent to the sixth respondent on 4 July 1996 (together with the first three letters), and also published by the fifth respondent to the first respondent on 18 January 1996.  The fifth one is a minute from the fourth respondent dated 24 April 1996 sent to the sixth respondent and also published then to the industrial officer of the Commonwealth Public Sector Union (the CPSU).

15. The third claim is against the third, fourth and fifth respondents.  It is for damages at common law for misfeasance in public office in that between September 1993 and July 1997 the third, fourth and fifth respondents in discharge of their public duties published false and/or misleading information to the first, second and sixth respondents concerning the applicant and his employment and concerning the sex discrimination complaint:  Nine communications on the part of the third respondent are identified, one on behalf of the fourth respondent and two on the part of the fifth respondent (the misfeasance in public office claim).

    BACKGROUND

16. Much of the background information is, as one would expect, uncontested.

17. It is convenient to record the management structure within the IT Services Group of the ATO at material times, including the roles of the third respondent, the fourth respondent, and the fifth respondent.

18. The fifth respondent worked with computers from 1965.  He worked with the ATO from February 1985 as First Assistant Commissioner and head of the IT Services Group from then to 1 October 1997 when he retired from the service.  He had 1200 or so staff under his control throughout Australia, including 600 in the Australian Capital Territory.  The persons under his supervision included the applicant, following the applicant’s transfer to the ATO in 1987. 

19. From 1985 to 1992-1993 the structure in the ATO was ‘line management’.  The applicant was accountable to the third respondent then Computer Systems Officer Grade 5 (the equivalent of Senior Information Technology Officer Grade A) and the Director, Database Services, managing the Data Services Section (sometimes called in evidence the Data Administration Section and which I shall call the Data Services Section) where both the applicant (from 1990) and X worked.  The third respondent reported in turn to the fourth respondent, who worked at the SDS level.  The fourth respondent in turn reported to the fifth respondent.  The fifth respondent reported to the Commissioner of Taxation.  The administrative system was changed to ‘portfolio management’ in 1992/1993 so that the third respondent (and others at that level) reported directly to the fifth respondent.

20. The fourth respondent joined the service in 1968.  He worked in the ATO between 1970 and 1972, then from 1986 to 1997 as Assistant Commissioner in the IT Services Group of the ATO.  In that position he performed the role of senior manager in the IT Services Group.  His immediate supervisor was the fifth respondent.  On occasions in 1993 and 1994 the fourth respondent acted in the office of the fifth respondent when the fifth respondent was away.  From 1997 until his retirement on 13 November 2002, the fourth respondent held the position as First Assistant Commissioner in the IT Services Group, later known as ATO Technology.  During that time he had overall responsibility for the management and operations of that division of the ATO. 

21. The fourth respondent’s direct involvement with the applicant of any significance was only from 1994.  He was the supervisor of the third respondent.

22. The third respondent joined the ATO in August 1986 as Director of Data Administration to set up the Data Services Section of the IT Services Group.  In 1990, he became the Director of Database Services and from 1993 the Director (and later the Senior Director), Applications Support.  In 1996 he became the National Business Activity Manager, Applications Support.  Those roles all gave the third respondent responsibility for database administration and database design functions within the IT Services Group of the ATO.  In late 1996 the third respondent was transferred to an advisory role as IT Technical Expert until February 1998, when he transferred in the service to the Australian Bureau of Statistics.

23. In his various roles, the third respondent was the applicant’s direct supervisor between 1987 and February 1993, and again from June 1994 to December 1995.

24. The applicant was employed in the service on about 25 October 1975.  He worked successfully in the Department of Defence, the Australian Bureau of Statistics, the Department of the Capital Territory, the Department of Housing and Construction (for two separate periods) and the Patent, Trade Marks and Design Office until early 1987.  His work was in the information technology area.  His career moves apparently reflect periodic promotions with the service.

25. In February 1987 the applicant commenced work at the ATO.  Until February 1993 the applicant was employed as Assistant Director, Database Administration subsection (the DBA subsection).  He remained in that position until mid-February 1993.  The DBA subsection was part of the Data Services Section of the IT Services Group of the ATO.

26. The applicant worked directly in line under the third respondent when the applicant first transferred to the ATO in the DBA subsection.  By 1991-1992, the applicant was a team leader or manager in that section, in charge of some 12 to 16 people.  He occasionally acted in the office of the third respondent when the third respondent was on leave.  To that time, the third respondent found him to be a reasonably good worker, with good analytical skills, although he sometimes apparently focused on technical issues at the expense of management issues.  The third respondent rotated his four team leaders in the Data Administration subsection between technical and management roles from 1990.  He noticed in early 1991 that staff morale in the DBA subsection would drop when the applicant was in the management role, apparently because of his style of management.

27. In April 1990 X joined the ATO and commenced working in the same area as the applicant and under his supervision.  It is now clear from the applicant’s evidence, although the third respondent did not learn of it until December 1992, that the applicant and X were having a form of relationship at and following that time.  The third respondent only learnt of the relationship when it had broken down.  The applicant and his wife told the third respondent of the relationship and of the agreement that it had come to an end.  The agreement was made on 30 August 1992.  The third respondent was told that the applicant and X had agreed not to see each other again, and that they could not work together in the same workplace, so that X had agreed to seek a transfer within the service and outside the ATO.  He was also then told that the applicant had been attending an EASACT counsellor.

28. At about the same time, X gave the third respondent a letter dated 31 August 1992 requesting her transfer, and seeking the third respondent’s assistance in arranging a transfer, within the service.  It confirmed what the applicant had told the third respondent about that time.  The applicant also went on three weeks’ leave at the time, also (as the third respondent understood, and as was the case) pursuant to the agreement of 30 August 1992.  He learnt also that X was undergoing counselling. 

29. After discussion between the fourth respondent and the fifth respondent and the third respondent, X was temporarily ‘outposted’ to a different part of the ATO though still performing DBA subsection work, while the third respondent tried to arrange her transfer to another department of the service.  Whilst still ‘outposted’, on 18 November 1992 X by memorandum to the third respondent withdrew her request for a transfer and asked to be relocated to the DBA subsection.  In that memo she said that she was confident that she would no longer have difficulty working in the same area as the applicant.  The applicant came to learn of that request.  By letter of 20 November 1992 to the fifth respondent, he strongly opposed X returning to work in the DBA subsection.  He emphasised that he himself was reluctant to move from the DBA subsection.

1. The third respondent discussed those circumstances with the fifth respondent.  They made certain inquiries.  On 10 December 1992, the fifth respondent, in consultation with the third respondent, decided that both the applicant and X should be removed from the DBA subsection to separate work areas within the ATO.  In early February 1993, X was relocated to a new work area and the applicant was also in mid-February 1993 relocated to the Client Consultancy Services (CCS) Section of the IT Services Group until December 1993.  It was during that period, on 17 September 1993, that the applicant made the sex discrimination complaint to the first respondent.  During that period, also, the applicant consistently sought that the decision to transfer him from the DBA subsection be reversed, and that he be relocated to the DBA subsection.  He was unsuccessful in those attempts.

2. In December 1993, as the project the applicant was working on in the CCS Section was completing, the applicant was transferred to the Information and Research Services (IRIS) Project Team within the ATO. 

3. At the time of the restructure of the IT Services Group in early 1994, the applicant on 8 March 1994 requested that he be moved back to the CCS Section in the CBS Tower.  He indicated that he accepted that it was not appropriate at that time to seek re-transfer to the DBA subsection until resolution of a grievance complaint and his complaint to the first respondent.  He referred in particular to his transfer from the DBA subsection and to the ‘unreasonable conditions declared’ for his return to that position.  The applicant followed up that request on 22 March 1994.  The third respondent gave consideration to the applicant’s request.  Some staff in the Data Services Section had previously worked with the applicant in the DBA subsection and were reluctant to have him return there.  The third respondent was then aware of communications between the applicant and the fifth respondent regarding the applicant’s reluctance to attend a meeting with the fifth respondent as requested, and indeed of his reluctance to have further dealings with the fifth respondent.

4. It was decided that the applicant should return to the CCS Section.  He did so on 7 June 1994 (formally documented on 20 June 1994).  As part of the restructure, the third respondent was in charge of the applications for the Support and Consultancy Section, which included most of the previous CCS Section, the Software Engineering and Architecture Section, and the Data Services Section (including the DBA subsection).  Up to that time the DBA subsection had been located in another building. 

5. During 1994 the third respondent and the applicant discussed on several occasions how the applicant’s outstanding workplace issues in relation to the DBA subsection might be resolved.  The third respondent said his primary concern was to resolve workplace issues and tensions, so the applicant could be a productive staff member who could work well with other staff.  An incident of that outcome, if achieved, might be the applicant’s return to work to the DBA subsection.  The applicant’s focus was much more specific.  He simply wanted to return to work to the DBA subsection as soon as possible.

6. In October 1994 the third respondent approached EASACT to see if it could assist in his objective, and the applicant agreed to him doing so.  The second respondent was assigned to the task.  The applicant says that he suggested that course of action to the third respondent, as he saw it as a possible way to clear the air with the DBA subsection staff who were still concerned about his return to work there.  The third respondent did not give evidence to dispute that suggestion, namely that the involvement of EASACT first came from the applicant, though he pointed out that EASACT had made a presentation to ATO officers in October 1994 as to the services it had been engaged to make available to ATO staff.  The suggestion that the applicant proposed that contact in the first place is consistent with his desire to return to work in the DBA subsection and to promote exploration of how he might overcome at least one of what the third respondent and the fifth respondent regarded as obstacles to him doing so.  The third respondent said his primary concern in all this remained the general concern of resolving workplace issues and tensions, so that the applicant could be a productive staff member who could work well with other staff, and that the applicant returning to the DBA subsection would be simply an incident of that outcome if achieved.

7. The process undertaken by the second respondent was to consider whether mediation of the issues between the applicant and some staff in the Data Services Section (including the DBA subsection) could usefully be undertaken.  The process was prolonged.  It was not completed until December 1995, although the nature of the issue addressed by the second defendant evolved over time.  It was not successful as the second respondent reported then that there would be no point in such a mediation process.

8. In the meantime, the issues arising between the applicant and some staff in the Data Services Section were potentially forced to a head.  The locations of various sections changed in mid 1995 when the DBA subsection and the CCS Section, and some other subsections, were to move to the same floor of the same building, the fourth floor of CBS Tower.  The applicant would therefore have been working on the same floor as those staff, albeit in a different subsection.  The immediate problem was averted as the applicant then went on long service leave from mid-1995.  He did not return to work until 2 January 1996.  Shortly before his return to work, he was directed to work in the IT Services Costing Project on the 7^th floor of the CBS Tower.  He did so only briefly.  He then commenced an extended period of sick leave.

9. The applicant next returned to work on 16 December 1996.  He reported directly to the fourth respondent.  He remained in those duties, albeit reluctantly, performed again away from the DBA subsection, until 4 June 1997.  On that date the applicant was suspended from duty.  He did not return to work thereafter.

10. His employment in the service formally ceased on 20 May 2001.  That followed his convictions on three counts for attempting to inflict grievous bodily harm on another person by sending explosive devices through the mail in December 1998 to many of those persons with whom he had dealt concerning his transfer from the DBA Section in February 1993, and his sex discrimination complaint.  The applicant said in evidence his actions were, he now accepted, stupid and irrational.

11. The applicant in his opening said that his initial overall objective by the claims in this action was to get his job back in the DBA subsection.  He accepted that in the light of his convictions he would no longer achieve that objective.  Events since the action was commenced, leading to the cessation of his employment in the service, have made that prospect beyond reach in these proceedings.

    the witnesses

12. The evidence was very extensive.  The applicant understandably wished to put forward every piece of information which he considered might be relevant to his case.  His dealings with the respondents indicate a person who is very cautious to ensure that no observation or statement of any of the respondents which might be either inaccurate or incomplete should go unremarked, or uncorrected.  They also indicate a person who is fastidious in his attention to detail.  A lot of the material in evidence reflects that approach by the applicant, and a similar approach by the respondents.  Each party was obviously anxious to leave no assertion or comment unanswered, lest silence be construed as acquiescence or acceptance.

13. It is easy enough to understand how things came to that stage, although understanding should not be seen as endorsement of that approach.

14. The applicant, whatever his underlying personality, had on his own account a very difficult relationship with X, and one which he unsuccessfully strove to extract himself from.  It influenced his health adversely, even to the point where he attempted suicide.  He sought the assistance of the ATO.  He did not consider he got the level of assistance he was entitled to, although I think anything much short of a resolution of his difficulties on his terms would have been regarded by the applicant as a sufficient and adequate response by the ATO officers.  When the agreement reached on 30 August 1992 apparently was not honoured by X, by her desire to return to the DBA subsection in late 1992, the applicant and X were both moved from the DBA subsection and upon terms which (the applicant understood) imposed the consent of X as a condition of his return to that work area.  The applicant felt he was being punished for being the victim of sex harassment by X.  Moreover, he felt that X had control over his future work placement.  Those experiences made him sensitive to and suspicious of the roles played by the respondents in his employment locations after 1992.

15. It was the applicant’s underlying personality, fuelled by those experiences, which made the applicant the pedantic and assertive individual which others perceived.  It was in response to that assessment of the applicant that the respondents themselves adopted thorough note taking procedures and were very cautious and careful in their communications with him.  I point out that, in recognising those circumstances, I am not making any finding in fact as to the nature of the relationship or dealings between the applicant and X generally.  That was not directly an issue in the proceedings, and X did not give evidence. I have addressed particular events as necessary for the resolution of the applicant’s claims.  However, that overall understanding of the applicant’s position explains why the communications between the parties, and the affidavit evidence of the applicant, is so fulsome and detailed.

16. To his credit, at the hearing, the applicant adopted a more robust and realistic view of what matters the Court needed to address to determine his claims.  A number of objections to the proposed affidavits made by one or other of the respondents he acquiesced in, because he accepted that resolution of the particular factual issue was not integral to determination of his claims.  He limited his cross-examination to areas of direct relevance to his claims.  In several instances, he did not pursue cross-examination much if at all because a particular witness had previously been affected by his conduct towards that witness and he expressed regret to that witness for the distress he had caused.  He adopted that course with the awareness that, as was explained to him, the failure to challenge in cross-examination evidence given by a witness was likely to lead to that witness’ evidence being accepted.  The respondents, for their part, remained focused on matters directly relevant to the matters to be determined in the proceedings, both by the evidence adduced from witnesses they called and in cross-examination.

17. The end result is that the recording of my findings can proceed largely in a narrative and chronological sequence.  I shall indicate where particular contradictory evidence requires particular consideration.  It also is both possible and appropriate to limit the findings to those matters which do directly relate to the issues arising in the proceedings, so that I have not traversed each and every piece of evidence received in the course of the hearing.

18. Before setting out the detailed findings, I also record my views as to the reliability of the witnesses.

19. Evidence was given by the applicant, each of the second to fifth respondents, by Betty Hand a member of the service working in the DBA subsection of the ATO from about 1991, and by Sally Petherbridge and Debra Tyler, each officers of the Australian Capital Territory Human Rights Office (the ACT HRO).  The ACT HRO acted as agent for the first respondent in receiving and investigating the applicant’s sex discrimination complaint to the first respondent between 17 September 1993 and 31 December 1996.  There was also, as I have indicated, extensive documentary material either exhibited to affidavits or tendered during the course of the hearing.

20. I accept that the applicant was a witness of truth.  I have indicated above that his evidence emerged from the prism of his perceptions of his experiences at the hands of X, and of his perceptions of the approach to his problems adopted by the respondents, having sought to engage the ATO and then the first respondent in redressing the adverse consequences or effects of his dealings with X.  Consequently, there are parts of his evidence reflecting his views on particular matters which do not necessarily reflect what I find to be the facts.  Indeed, in his evidence from time to time the applicant acknowledged that an assertion of fact he had made was based upon inference from what he knew or understood, and from his particular perspective.  When examined in the light of the whole of the evidence, that inference in a number of instances is not one which I have drawn.  That is not so in every case of dispute between the applicant and one or more of the respondents, but I think his evidence reflects that by early 1993 the applicant was of a mind to draw from particular circumstances the more sinister inference available to him about the reasons for particular conduct of one or more of the respondents when a more benign explanation from the circumstances and the primary material was available.  My conclusion from the whole of the evidence is generally that the more benign explanation is the correct one.

21. One theme of cross-examination of the applicant was to suggest that many of the actions he took, including the grievance complaint against the third respondent on 16 November 1994, are indications of the applicant being prepared to use all available procedures to bully his way to the outcome he wanted.  I find that the applicant acted on what he regarded as genuine and proper motives, that is to get himself returned to the DBA subsection whence he considered he had been unfairly removed.  It is clear, as the applicant himself acknowledged, that he did avail himself of all or many possible avenues to force the issue, as he did not accept that the process was proceeding as quickly as it should and, from his viewpoint, (however mistaken), he regarded that all those with whom he dealt were conspiring to frustrate the outcome to which he thought he was entitled.  Hence, his grievance complaint against the third respondent in November 1994.  Hence, also his various actions commenced against officers of the ATO referred to elsewhere in these reasons.  The applicant in evidence, no doubt in the light of his awareness of the views of Linda Millar, the Equal Employment Officer (‘EEO’) of the IT Services Group of the ATO and of the third respondent’s disagreement with them, acknowledged that the issue of his return to work in the DBA subsection from the third respondent’s point of view was not straightforward.  It is also worth noting that the applicant did not then, and still does not, accept that his strong and insistent desire to return to work in the DBA subsection and the steps he took to procure that end itself generated concern on the part of those in the workplace.  However it did so.

22. It was in a sense a ‘Catch 22’.  The applicant had or developed the firm conviction that he had been wronged, and wrongfully punished, by his transfer from the DBA subsection.  He had a strong desire to return there to demonstrate vindication of his rights.  Others did not have that full appreciation of his point of view, and could see only the applicant taking what steps he thought were available to him of a very insistent nature to achieve a result.  I can understand why the taking of those steps in the circumstances, not simply the number of steps but the types of steps (legal actions, grievance complaints and the like) would generate reluctance to accept the applicant back into the workplace and would generate some concern that, if he returned to that workplace, those working there would become significant targets of such behaviour.  The more forcefully the applicant pursued what he regarded as a legitimate objective, so the potential for that forceful conduct to be understood as a basis for his co-workers’ reluctance to have him return there grew.

23. Consequently, I do not find that the applicant was acting dishonestly or, from his viewpoint, improperly in taking the action he took up to mid 1996 to return to the DBA subsection.  I do not discount his honesty on that score.  However, as I have said, his perspective required an informed viewpoint which, one can readily understand, was not shared by those working in the Data Services Section or more specifically the DBA subsection.  One can also readily understand their perspective, with their awareness of the actions the applicant took from time to time to enforce his ‘rights’ as he saw them.  The resolution of the issues in these proceedings is not, therefore, influenced by any adverse assessment of the applicant’s honesty.  It is of course a different matter as to the weight to be given to his evidence where it is in conflict with other evidence on issues which need to be resolved.

24. The second respondent gave his evidence in a straight forward way.  He was very careful to define his role.  It was not to mediate between the applicant and those in the Data Services Section (including the DBA subsection) who opposed his return to work there.  He advised by February 1995 that the prospects of successful mediation were negligible.  Nevertheless, he undertook then the process of endeavouring to give both the applicant and those in his former workplace a better insight into their respective concerns.  It is possible to be critical of the length of time that process took.  It does not, in my view, indicate any lack of genuineness on the part of the second respondent.  Nor does it indicate any ulterior or sinister purpose on the part of the second respondent, either alone or shared with the third respondent.  In my judgment, the second respondent’s evidence is reliable and I accept it.  I accept he was acting in a professional capacity only and that his evidence about what he did and why he did it is both truthful and accurate.

25. I also found the third and fifth respondents to be straightforward witnesses.  They were the respondents against whom the applicant made the most serious allegations of dishonesty.  The particular allegations are addressed below.  In each of their cases, I find that they gave their evidence honestly, and endeavoured to be reliable in what they told the Court.  They were cautious in how they expressed their evidence.  My firm impression is that such caution reflected a desire not to be unfair to the applicant.  That approach was consistent with their dealings with the applicant throughout, that is they consistently sought to be objective and thorough in their dealings with him, notwithstanding that he presented to them a difficult administrative problem.  They each acknowledged that their focus was on securing a properly functioning workplace, as well as on treating the applicant and X fairly.  As they did not regard the resolution of the sex discrimination complaint as their function, or more accurately they did not regard the resolution of the underlying issue to the complaint that the applicant was the victim of sex harassment by X as their function, their evidence must be assessed in that light.  As I have observed, the applicant in effect started from the position that he had been sexually harassed by X, so that any move from the DBA subsection wrongly punished him.  Whether the approach of the third and fifth respondent suggests a finding of the impropriety alleged by the applicant against them is considered below.  In assessing the allegations against them, I have generally accepted their evidence as to why they acted in particular ways at particular times.

1. In fact, the fifth respondent’s dealings with the applicant after 1995 were slight.  The management of the attempt to get the applicant to return to work in 1996 and 1997 was managed by the fourth respondent in consultation with him.  Those matters are considered later in these reasons. 

2. The fifth respondent was the target of quite serious allegations by the applicant.  They include that he participated in the fabrication of the ATO response to the applicant’s complaint to the first respondent, in the concealment and fabrication and destruction of evidence in relation to the investigations of that complaint and in relation to the applicant’s claim for compensation, and in procuring X as a respondent to the applicant’s complaint to the first respondent so as to use her as a vehicle to provide false information in support of the ATO’s response to the complaint to the first respondent.  The fifth respondent denies all those allegations.  I accept his evidence that he did not engage in any of that conduct.  A careful analysis of the communications indicates that the fifth respondent was careful to maintain a proper trail of all his dealings with and concerning the applicant.  There are, in my view, no indications that the paper trail is either incomplete or contrived or fabricated in any respect.  The contrary is the case.  From the applicant’s perspective at the time, where he saw ‘all the world’ against him, it is understandable that he took the next step of concluding some form of collusion in those he perceived as acting against his interests.  However, I do not consider that his perception is a correct one.

3. I have not overlooked the one category of document for which there is no clear trail to the hands of X.  It is the consulting notes of Ms Langford (EASACT) as counsellor for the applicant during 1992.  It appears that these notes somehow became available to X at some point in time.  There is no clear explanation of how that happened.  However, there is also no clear evidence which shows that those notes were provided to the fifth respondent at that relatively early stage, and no material suggesting that he had possession of them, much less that he passed them onto X.  His denial of having done so is in my view consistent with the care and propriety with which he conducted all his dealings with the applicant over the relevant period.  The notes were included in material received by the fifth respondent headed ‘Papers referenced in submissions to ACT Human Rights Office of 27 September 1996 by Mr C Dunstan’, apparently provided to the ACT HRO by the applicant during 1996.  They were also apparently given to the AAT in or about February 1996 by the applicant in relation to his compensation claim.  Whether either of those pathways is the means by which the information got to X is unclear. 

4. The applicant also alleged in his statement that the fifth respondent used his position to cause disruptions to the applicant’s salary and child support payments to victimise him.  In cross-examination the applicant said that, although he was of the view that there had been manipulation of his salary and child support payments, he did not know that, and did not have direct evidence that the fifth respondent was involved in that suspected manipulation.  I accept that the fifth respondent did not do that.  There is no evidence to suggest he did.  He denies that he did.

5. As with the fifth respondent, the applicant made similar serious allegations about the motives and conduct of the third respondent.  All were denied.  There was no cross-examination directly challenging his evidence-in-chief containing that denial.  My comments about the fifth respondent apply equally to the third respondent.  His evidence accords with contemporary documentation.  The documentation itself is coherent and, although expressed often in cautious terms, does not contain within it any indications that it is contrived or falsified.  It extends across communications with the applicant, with officers of the ATO, with the second respondent and with the ACT HRO in an apparently consistent and credible way.  Its terms reflect my impression of the oral evidence of the third respondent and the fifth respondent as conscientious truthful and thorough officers of the service, whose evidence is generally reliable.

6. The fourth respondent was somewhat less directly involved with the applicant than the third and fifth respondents.  Like them, I found his evidence was given carefully and honestly.  He too was careful and thorough.  His evidence accorded with contemporary documentation, and I do not think that the contemporary documentation (although carefully expressed) was contrived either on the part of the applicant or on the part of any of the respondents.  In my judgment, his evidence generally was reliable and comprehensive of his role and that of others with whom he was dealing.  I accept it.

7. The applicant in his final submissions did not challenge the honesty of the other witnesses called by the respondents:  Ms Hand, Ms Petherbridge or Ms Tyler.  He did make submissions about the accuracy or reliability of certain parts of their evidence.  I accept their evidence both as honest, and generally as reliable.  Like all the witnesses, there are a few areas which other evidence tends to put a little different light on particular events than that perceived by each of those witnesses.  I have discussed those events below.  Overall, I think each of those persons’ evidence is reliable and I accept it.

   the findings

8. As much of the unfolding history of events is recorded in writing, my findings can also be recorded more or less chronologically.  There is no significant dispute about the communications which were exchanged between the parties.  Nor is there any real issue as to the authenticity of other documents which became part of the evidence.  The complexity arises in determining the accuracy of factual assertions made in many of the communications or documents.  That is because the perspective of the author needs to be considered when understanding the significance of particular communications.  Where it is necessary to do so, I have therefore expanded upon the recording of relevant events.  For the reasons already given, I have not addressed or recorded each item of communication, but confined my findings to those which directly relate to the applicant’s particular claims.

9. Apart from the background concerning the applicant’s ‘relationship’ with X, the starting point for present purposes is when that ‘relationship’ first came to the attention of one or other of the respondents.

10. The third respondent was the applicant’s direct supervisor.  I accept his evidence that he only learnt of the applicant’s relationship with X, and that it had broken down, about the end of August 1992.  He learnt then that those events had affected the applicant’s health, that the applicant was consulting the counsellor Ms Langford of EASACT, and that X was also undergoing counselling.

11. The fifth respondent was aware that the applicant was one of the senior IT officers working in his group.  He also first became aware of the relationship between the applicant and X on about 31 August 1992.  That was when X requested a transfer to another department in the service, due to potential ongoing difficulties in working with the applicant in the DBA subsection.  It was reported to him also that on 30 August 1992, the applicant and X had decided to end their relationship and to stop all contact between them, and that they therefore wanted to avoid the risk of conflict and misunderstanding.  There was no complaint made to him at that time regarding behaviour on the applicant’s part.  The fifth respondent spoke to the third respondent about the matter.  The third respondent confirmed to him the relationship between the applicant and X, and that it was affecting the team morale in the DBA subsection.  The fifth respondent therefore asked the third respondent to follow the matter up and to implement the request of X that she be moved.  She was given an interim ‘outposting’ within the ATO in the meantime.  The applicant continued working in the DBA subsection, after taking three weeks’ leave (as he had agreed to do as part of the arrangement between the applicant and X and their respective spouses on 30 August 1992). 

12. Then, on 18 November 1992, X withdrew her request for a transfer and asked to return to the DBA subsection.  She said that she thought she would no longer have difficulty in working in the same area as the applicant.  The applicant apparently learned of her request very promptly.  On 20 November 1992 he wrote to the fifth respondent (copied to the third respondent) requesting that X be transferred to another area in the IT Services Group.  His letter referred to the history of the relationship and to the agreement reached on 30 August 1992.  He expressed both anger for what X had done to him in the past and fear for what she might to do him in the future.  He concluded:

    ‘I am VERY reluctant to leave my current position.  My work IS important to me.  I enjoy working with people in Database Services.  I am very proud of what we have achieved.

    [X] has not spoken to me since August this year.  I cannot understand the basis of her claim that she believes we can now work together.  The problem which has emotionally crippled us for over six years refuses to go away.

    After six years of difficulties between [X] and myself, I am sceptical that any “reconciliation” could be successful.  I would appreciate your assistance and support in transferring [X] to another area in IT Services Group.’

    It is important to note that the memorandum did not, in my view, represent a formal grievance complaint about sexual harassment by X.  It identified a serious concern of the applicant, and the way he thought the concern should be addressed.

13. The fifth respondent and the third respondent then gave careful consideration to the circumstances, including seeking advice from two persons who were separately providing counselling to the applicant and to X.  They met with the applicant and his counsellor Ms Langford on 24 November 1992.  At that time Ms Langford advised them that the applicant was severely depressed, indeed suicidal, and that she believed for the applicant’s psychological well-being that it was advisable that he not work in the same vicinity as X.  She repeated that view in a meeting with the fifth respondent and the third respondent and with the counsellor to X on 9 December 1992.  Apparently, on the other hand, the counsellor to X, Lorraine Fox did not think X would have the same difficulty in returning to work in the same area as the applicant was working.

14. The third respondent was aware that the work being performed by X when outposted was to continue to January 1993.  Hence, he knew that it was convenient within the temporary arrangement for her to remain there for that period.  Like the fifth respondent, he also was concerned that any action he might take should have regard to the health of each of the applicant and X, and in particular if they were working in the same workplace.  He was also concerned about morale in the workplace if both the applicant and X were to resume work there together.  He also met with Ms Millar, EEO of IT Services of the ATO, on 24 November 1992.  Ms Millar gave him certain advice.  In his discussions with both the applicant and X separately, they also each indicated that they were concerned at being moved from the DBA subsection as one might then later return leaving the other disadvantaged in their career. 

15. The fifth respondent then decided, in consultation with the third respondent, on 10 December 1992 to move both the applicant and X out of the DBA subsection.  They accepted the advice that the applicant and X should not work together in the same area.  The fifth respondent said:

    ‘ … the only equitable way forward was to move [them both] out of the DBA subsection.  We felt it would be unfair to have selected one over another, as moving out of a team would have an impact on the individual’s career for a period of time.  In our view Mr Dunstan and [X] should be treated equally.’

16. The third respondent says that his advice, and from the discussion he had with the fifth respondent, the decision, was motivated by concerns regarding the applicant’s health if he and X were working in the same area, and that the applicant and X should be treated equally, and to minimise any impact in the DBA subsection workplace.

17. The fifth respondent told X of the decision in the presence of the third respondent on 11 December 1992.  The fifth respondent told X that the move was not permanent and could be reviewed after (say) six months, although on the basis that if one officer was to return to the DBA subsection, then the other could also return.

18. On the same day the third respondent told the applicant of the decision.  As the fifth respondent had said to X, the third respondent told the applicant that in the future the applicant or X might be able to return to the DBA subsection, but that the support of the other non-returning party would be sought before doing that.  He also told the applicant that the decision was motivated by the desire to treat the applicant and X equally. 

19. The applicant claims that the decision was ‘consequent upon’ the allegations in his letter of 20 November 1992 and motivated by the fifth respondent’s desire to prevent the applicant from laying a harassment claim against X.  The fifth respondent denies that.  He was not challenged in cross-examination.  His evidence as to the process of his decision-making was confirmed by the third respondent.  I accept their evidence.  The applicant did not submit in closing submissions that I should not do so.

20. Both the third respondent and the fifth respondent say that in December 1992 they did not have the opportunity to resolve (or indeed the function of resolving) any sexual harassment complaint by the applicant against X.  They had to address the personal conflict in the workplace in the interests of both the applicant and X, and of others working in the area.  The third respondent also said that he did not regard the applicant’s minute of 20 November 1992 to the fifth respondent, whilst setting out his views regarding work placements, as a request to investigate any sexual harassment allegation against X.  He pointed out that there was a formal means of making such a complaint which the applicant had not pursued by that memo.

21. Although the applicant’s letter of 20 November 1992 provided information in relation to X’s desire to return to the DBA subsection, I accept that the decision of the fifth respondent on 10 December 1992 that each of the applicant and X be moved from the DBA subsection was pursuant to a desire for each of the applicant and X to receive equal treatment.  The fact was that they assessed that both the applicant and X should not work in the same area.  The underlying reasons why that was so were not then of great moment to them.  No doubt the applicant was of the view that the reasons – at least as set out in his letter of 20 November 1992 why they should not work together – should have been important to the third respondent and the fifth respondent.  It is quite possible to understand the applicant’s point of view, as in his mind he was being penalised although he was not ‘the wrongdoer’ and the solution, namely that X only should move from the area, had been resolved upon by the private agreement between the applicant and X and their partners on 30 August 1992.  However, I accept that neither the fifth respondent nor the third respondent were focusing on the underlying reasons for the problem of the applicant and X no longer being able to work together.  Their concern was the health of the applicant and X and the problem their relationship then was producing to the morale of the DBA subsection working team.  They were simply reacting to a problem in what they regarded as the best interests of the workplace and in the interests of fairness between the applicant and X.  Whether their judgment about what was fair was correct is a separate question.

22. I also accept, contrary to the applicant’s suspicion, that the fifth respondent did not give an undertaking to X not to permit the applicant to return to work in the DBA subsection without X’s consent, nor consequentially that he concealed that undertaking from the applicant.  His decision was that both the applicant and X should move from the DBA subsection.  He told X that the move need not be permanent, and could be reviewed after about six months, but that neither would be able to return to the DBA subsection without the other’s consent.  He then asked the third respondent to convey the same decision to the applicant.  I am satisfied that the third respondent did so.

23. The position may have been muddied, in the applicant’s mind, by a later memorandum from Ms Millar.  By memorandum of 2 September 1993 to her senior executive in the division, Ms Miller reported of concern that X may have been subjected to discrimination and harassment in the workplace since early September 1992 to May 1993 and continuing.  Her memorandum is inaccurate, at least on the information before me.  It does not refer to, or recognise, the background to the agreement of 30 August 1992, or the agreement itself leading to X’s move from the DBA subsection (although still performing work of the DBA subsection) from 30 August 1992.  It refers to an agreement ‘orchestrated by’ the fifth respondent that both the applicant and X be transferred from the DBA subsection in December 1992, when there was in fact no agreement but a decision by the fifth respondent for that move in the circumstances set out above.  It refers to X being transferred on 8 February 1993 pursuant to that ‘agreement’ (in fact that decision) and the applicant being transferred only a week or so later.  It (wrongly) asserts that the third respondent then made a number of unsuccessful attempts to relocate the applicant back to the DBA subsection in the ensuing months.  Ms Millar’s memorandum also refers to harassment of X by the applicant between 14 April 1993 and 30 April 1993, leading to the fifth respondent reprimanding the applicant for making that contact, and the applicant indicating that he would not communicate further with X except ‘through the courts’.  He in fact then instituted proceedings for harassment against X in respect of the period August 1987 to August 1992.  It seems to me that Ms Millar’s memorandum might have been seen as one sided and judgmental.  However, not having heard all the evidence on that topic, I do not (and do not need to) formally determine its accuracy.

24. I find that neither the fifth respondent and the third respondent were concerned to investigate the allegation of sexual harassment made by the applicant against X by his letter of 20 November 1992 during their decision-making process in December 1992.  They said that that was not their role.  They had a problem which they had to confront, namely two members of the same work team in personal conflict, and they had to address that problem quickly both in the interests of the applicant and X and in the interests of the workplace.  The applicant in evidence accepted that their decision could not have been delayed pending the final outcome of the sex harassment complaint.  His memorandum of 20 November 1992 did not request the fifth respondent or the third respondent to investigate that complaint, though it referred in detail to the complaint, so that they should be informed of it when deciding what to do about the immediate problem.

25. In early February 1993, X was transferred from the DBA subsection of the ATO.  In mid-February 1993, as noted, the applicant also was transferred to CCS Section, although that move was only formally documented on 30 March 1993.  Thereafter the fifth respondent described the applicant as beginning a pattern of ‘issuing grievances against work colleagues’.  The third respondent then had no workplace involvement directly with the applicant from his transfer out of the DBA subsection in February 1993 until May 1994.  From February to December 1993 the applicant worked in the CCS Section of the IT Services Group of ATO, and then in the IRIS Project team.  However, during 1993, a group of Database Services Section staff arranged a meeting with the third respondent to express their concern about the applicant’s management style.  The third respondent followed that up by seeking details of those concerns, so that he could raise them with the applicant when he thought the applicant’s psychological state had improved.  He also took part in a meeting with the applicant and the fifth respondent on 6 September 1993.

1. In April 1993 the fifth respondent learnt that the applicant had been in contact with X.  He told him to stop.  Nevertheless, the applicant continued further correspondence with X on 26 April 1993.  A copy of that letter came to the fifth respondent’s attention.  He decided to discuss the situation with the applicant’s treating psychiatrist, Dr Tym, and with Ms Langford, his counsellor from EASACT.  He approached the applicant for permission to do so.  The applicant said in evidence that he understood that the fifth respondent was very concerned to get information regarding the applicant’s mental state, and that it was desirable that the fifth respondent should be able to do so.  There is, however, a dispute between the applicant and the fifth respondent as to whether the fifth respondent put the threat of suspension of duty to the applicant as an inducement to give his consent to the fifth respondent contacting Dr Tym.  Although I suspect the fifth respondent may have indicated that if he did not get information from the applicant’s treating counsellor and psychiatrist, he would consider sending the applicant to the Commonwealth Medical Officer, I do not accept the fifth respondent beyond that made the threat which the applicant perceived.  The subtleties of the conversation are not themselves important to resolution of the present issues.  The applicant gave the fifth respondent permission to speak to Dr Tym, and he did so, but the information then obtained did not apparently result in the fifth respondent adopting any different course of action.  The fifth respondent continued to speak to the applicant from time to time, often at the applicant’s instigation, when asking that he be transferred back to the DBA subsection.

2. On 9 May 1993 the applicant received advice from a solicitor regarding certain aspects of his then past relationship with X.  A copy was provided to the fifth respondent.  The fifth respondent also received an unsigned memorandum from the applicant setting out at some length his version of his lengthy experiences with X and her harassing contact towards him.

3. Then on 10 May 1993, X lodged with the ATO a grievance complaint against the applicant of workplace harassment in respect of his contact with her during April 1993. 

4. On 14 May 1993 the applicant wrote to the fifth respondent requesting an immediate retransfer back to the DBA subsection.  He reported of continuing to feel ‘powerless and defenceless’ and that X was able to manipulate others into putting him into that position.  He suggested his retransfer was a step along his road to acceptance of the past and to show his life was not still being manipulated by X.  The fifth respondent did not think that the retransfer of the applicant to the DBA subsection (and if she also wished, the transfer of X back to the DBA subsection) would be wise.  Although the memorandum from the applicant requested the fifth respondent to take other steps to alleviate his position in relation to X, the fifth respondent did not do so as he considered that it was inappropriate.  In his evidence-in-chief, the applicant acknowledged that it was not appropriate for the fifth respondent to get involved in the applicant’s pursuit of his direct redress against X.  Indeed, in around May 1993, the fifth respondent ceased to have any involvement with the applicant in relation to his relationship with X.  He nevertheless dealt with the applicant generally thereafter as part of his normal duties.

5. On 7 August 1993, the applicant wrote to ATO Personnel, copied to the third respondent and the fifth respondent, to discuss the options available to the applicant to review the decision of the fifth respondent of 10 December 1992 to transfer him from the DBA subsection on the ground that the decision may have been technically flawed.  His memorandum said of the decision (unlike his present allegations):

   ‘I believe that all persons involved in reaching the decision I seek to have reviewed have acted in the utmost good faith and have attempted to deal compassionately with what is a difficult situation.’

   The suggested technical error was the emphasis placed upon the applicant being treated apparently equally with X, when in fact the circumstances leading to the decision had arisen from X sexually harassing the applicant, so that he had the right to stay in his job free of harassment.  He said:

   ‘My reasons for feeling that the decision to transfer me may have been flawed include the following:

   1.My minute to FAC(IT Services) of 20 November 1992 mentioned above set out conduct on the part of [X] which I believe indicates that she had been subjecting me to harassment of both a sexual and non-sexual nature for a number of years.  (See paragraphs 5 and 6).

   2.An ATO-produced pamphlet “Eliminating Sexual Harassment” states amongst other things:

   ·     “Being sexually harassed is not your fault”, and

   ·     “It is your right to stay in your job free of harassment.  You don’t need to transfer out or resign.”

   Prior to being informed of the decision to transfer me, I was not questioned on the statements in my minute on [X’s] harassment of me.  If my statements were accepted, I believe the decision to transfer me was arrived at in error.  If my statements were ignored or rejected, I believe I should have been given the opportunity to establish their veracity prior to a decision having been made.’

   The memorandum discussed then whether the applicant should take separate action to ensure that the assertion of harassment by X was established.  He indicated that he had commenced civil proceedings in the ACT court for damages from X for harassment for that purpose.  He offered to instigate appropriate disciplinary action against X if it were necessary to do so to establish the veracity of his claim of harassment.

6. The applicant’s memorandum of 7 August 1993 was shortly followed by a formal request to return to work in the DBA subsection.  The third respondent discussed that request with the fifth respondent.  They agreed that the applicant had to be apprised of the concerns of the Data Services Section staff about the applicant doing so.  The applicant pointed out, and the third respondent acknowledged, that the applicant had not supervised all persons in the Data Services Section (a larger group than those working in the DBA subsection).  Nevertheless, the third respondent maintained that the views of the larger group were relevant because the applicant, as a team leader in the team leader rotation system, might be moved to supervise many of them and they all worked in any event in the same general area.  That area was the seventh floor of Custom Credit House, where there were work areas for Administration Staff, Information Resources Management staff, Database Design staff, and the DBA subsection staff (including the applicant) all in the one open floor plan office and adjacent to each other, so that each other (and all subsections of the Data Administration Section) were there.  It was quite common for staff in one subsection to deal routinely with staff from another subsection regarding particular matters in the course of their daily work.  They also shared kitchen facilities, including the area where they could go for tea and coffee as required, as well as sharing common facsimile and photocopying machines.

7. I accept the applicant’s evidence that, when the third respondent spoke to him on 6 September 1993 regarding his request that he return to work in the DBA subsection, the third respondent told him in some detail of the concerns which the staff in the Data Services Section had earlier expressed.  Those concerns, as explained to the applicant, were that he may be vindictive towards certain people, that he did not share his knowledge, and that he spent different amounts of time with different staff.  I express no view as to whether those concerns were or were not justified.  The applicant suggested in evidence that those staff objections were engineered by the third and fifth respondents, but his view (as he accepted in evidence) was largely based upon inference.  I do not find that the third respondent or the fifth respondent engineered those complaints.  I accept that they arose in the circumstances referred to above.  I also accept his evidence that, in some way, he was given the impression that it was the desire of the third respondent and the fifth respondent that X be treated equally with the applicant, so that her attitude to his (or their) return to the DBA subsection was of relevance to the issue.

8. At about the same time, on 9 August 1993, X wrote to ATO Personnel regarding alleged further and more recent harassment by the applicant by the court proceedings against her.  She requested her grievance of 10 May 1993 be heard as soon as possible.  She referred to the civil proceedings commenced on 16 July 1993 and earlier proceedings for the recovery of a ring instituted on 20 May 1993 (the latter claim was dismissed when the ring was returned at a pre-hearing conference).  The grievance complaint was addressed by Assistant Commissioner Butterfield.  On 29 October 1993 he determined that there was no legitimate complaint of harassment against the applicant outstanding.  Mr Butterfield notified X by letter of 29 October 1993 that she had no legitimate complaint as there were ‘no current harassment issues related to the workplace’.  The evidence indicates the applicant did not receive a copy of that letter until 1996. 

9. In chronological sequence, I note then the minute or memorandum of Ms Miller of 2 September 1993.  It is referred to above.  It reflects quite a different perspective to that of the fifth respondent and the third respondent.

10. The matter did not rest there.

11. On 6 September 1993 the applicant sent to Mr Butterfield of ATO Personnel, copied to the fifth respondent, an official complaint of sexual harassment against X, and which I have called  the sex harassment complaint.  It concerned her behaviour in relation to the applicant during 1992.  On 8 September 1993 the applicant by letter to Mr Butterfield indicated that he wished to have no further contact with the fifth respondent concerning the applicant’s dealings with X, nor with X herself, and that he intended to resolve any ongoing issues by legal proceedings.  It reflects the applicant’s then view of the fifth respondent’s approach to the issues which, on the whole of the evidence, may not have been justified.  The fifth respondent is of the firm view that nothing he did in relation to the applicant or to X was other than even-handed and balanced, and in their respective best interests.  On 29 October 1993, Mr Butterfield informed the applicant that he was of the view that there was no sexual harassment relating to the workplace.

12. The letter of 6 September 1993 may have been prompted by a meeting of 6 September 1993.  There is a dispute, to some degree, between the third respondent and the fifth respondent on the one hand and the applicant on the other about whether the fifth respondent at that meeting on 6 September 1993 said that, as a result of a meeting in February 1993 (following the decision of the fifth respondent of 10 December 1992) it was agreed that the applicant could only return to the DBA subsection if both the applicant and X returned there.  The decision as conveyed to both the applicant and X was that, after a period of time, consideration could be given to one or other of them returning to work in the DBA subsection, and that if that were to occur it would be with the support or approval of the other of them.  The difference is really one of emphasis, and is capable of arising from different perceptions about what was said at the time.  The resolution of the difference will not affect the outcome of the present proceedings.  The focus of the fifth respondent and the third respondent, both in December 1992 and in June 1993 was on treating the applicant and X equally, without taking into account the applicant’s sexual harassment ‘complaint’ against X, together with taking into account the interests of others in the workplace. 

13. The applicant made a further formal grievance complaint on 1 November 1993 of sexual harassment in the workplace.  The satisfaction of the complaint, from the applicant’s viewpoint involved (inter alia) his return to the DBA subsection and that X not work in the same location as himself.  That was duly investigated.  On 29 March 1994, the applicant was informed by Acting First Commissioner Mobbs that the complaint could not reasonably be sustained.  The investigator’s report noted that X had pursued a relationship with the applicant, and that the ‘relationship’ had ceased in August 1992.  It further noted that when the ATO had become aware that the former ‘relationship’ may have been causing problems in the workplace, action was taken ‘to protect both parties from any potential harassment’.  In cross-examination, the applicant accepted that (as recorded by the investigator) the third respondent had been unaware of any problems until after 30 August 1992, and then after the applicant had been moved from the DBA subsection certain staff had expressed to him that they did not want the applicant to return there.

14. As occurred on at least one other occasion, the applicant then got ‘bogged down’ or caught between seeking internal review of that decision and seeking formal review of that decision in this instance by the Merit Protection Review Agency (the MPRA).  He was also involved at the time with the claim he made to Comcare, elsewhere referred to.  Ultimately, on 3 November 1994, he sought review of the decisions concerning his grievance complaints by the MPRA.  It was formally acknowledged on 22 November 1994.  Before dealing with that process, I revert to the findings concerning his employment positions.

15. As noted in the background section of these reasons, the applicant remained in the CCS Section until 10 November 1993 when he was transferred to the IRIS Project, and in June 1994 he returned to the CCS Section. 

16. Before taking up the further course of dealings concerning the applicant’s employment, I turn to the handling of the sex discrimination complaint to the first respondent of 17 September 1993 of alleged discrimination against the ATO.  Until 31 December 1996 it was handled by the ACT HRO.

17. Ms Petherbridge was the Director of the ACT HRO between July 1992 and June 1996.  Its functions included operating as a regional office of the first respondent.  In that capacity, it received the applicant’s complaint against the ATO dated 17 September 1993 together with other material.

18. Ms Petherbridge was only briefly cross-examined by the applicant.  He did not directly challenge any of her evidence-in-chief.  I accept it.  He indicated also to her that he regretted that he had caused her great concern in the past.  That may have influenced the extent to which he cross-examined her.  However, as pointed out to him on a number of occasions during the hearing, his approach results in it being unlikely that the court would reject her direct evidence on matters which have not been challenged in cross-examination.  As I have said, in my view Ms Petherbridge was a straight forward and honest and reliable witness.

19. Before receiving the sex discrimination complaint of 17 September 1993, Ms Petherbridge had spoken to Ms Millar, the EEO of IT Services at the ATO at Ms Millar’s instigation.  Ms Millar had sought advice as to whether the way the ATO was addressing the applicant’s concerns about X’s conduct was potentially discriminatory.  Ms Millar presented the issue as being whether there could be sexual harassment in the context of a consensual sexual relationship.  The complaint of 17 September 1993 presented a somewhat more complex, and different, picture to that very general one upon which Ms Millar had previously sought general advice.  It included that the relationship between the applicant and X had ceased but that the conduct of X towards the applicant had nevertheless continued.  Upon receipt of the complaint, but apparently only on 29 November 1993, Ms Petherbridge took what I regard as the appropriate precaution in the circumstances of getting advice as to whether she personally should conduct an investigation into the applicant’s complaint given that earlier history.  She was advised that it was appropriate for her to do so.  However, she acknowledged that her recommendation in June 1996 (referred to below) that the applicant’s complaint should be referred by the Sex Discrimination Commissioner (and the Race Discrimination Commissioner) for public enquiry, was or may have been, influenced to a degree by her desire not to be seen to have been influenced adversely to the applicant by that earlier communication with Ms Millar. 

20. The sex discrimination complaint referred to the history set out above.  It was duly acknowledged.  It was not pursued as promptly as it might have been.  On 20 November 1993, Ms Petherbridge wrote to the applicant expressing regret for delay in addressing his complaint, and explaining that it was due to the heavy workload of the ACT HRO.  In fact, she had not in my view considered the matter at all by then.  She did not raise the possible difficulty from having earlier spoken to Ms Millar about it until 29 November 1993 and the advice she received that she should handle the complaint was not given until 20 December 1993.  By 28 January 1994 Ms Petherbridge had progressed to the point of recording a number of matters she wished to take up or clarify with the applicant before taking further steps in the investigation.  She also sought and obtained legal advice as to whether the allegations of sexual discrimination were open on the facts, and if so whether the complaint properly was directed against the ATO. 

21. On 15 April 1994 the applicant made a further complaint of sexual harassment to the first respondent, in this instance directly against X.  That followed an ATO report of 5 April 1994 on a personal grievance report of 6 November 1993 which the applicant had made to the ATO concerning X.

22. Shortly after that, Ms Petherbridge went on long service leave until late August 1994.  Consideration of the complaint of 15 April 1994 was under the care of the Acting Director of the ACT HRO, and to some extent of Ms Tyler, while Ms Petherbridge was on leave.

23. In June 1994, the applicant made an application to Comcare for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of the disability which, he asserted, arose out of conduct the subject of the sex discrimination complaint, and the work arrangements which he claimed to have been imposed upon him as a consequence in particular of the decision of the fifth respondent of 10 December 1992. On 12 July 1994 Comcare rejected that claim. The applicant then sought reconsideration of the claim. On about 1 January 1995 the applicant lodged with the first respondent an addendum to the sex discrimination complaint, alleging disability discrimination (the disability discrimination complaint) by Comcare arising out of its rejection of his claim. In May or early June 1995 Comcare affirmed its earlier decision. On 7 June 1995 the applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the decision by Comcare rejecting his claim under the SRC Act. On 28 June 1996 the AAT affirmed the decision of Comcare that the applicant was not entitled to payments for disability on the basis he claimed.

24. There does not appear, on the evidence, to have been much progress by the ACT HRO in investigating the sex discrimination complaint between 17 September 1993 and the end of April 1994, a period over seven months, until Ms Petherbridge went on leave.  Then its investigation was diverted or deferred by the compensation claim.  In circumstances set out below, the investigation became inactive until 19 April 1995 at the applicant’s request.

1. The allegedly irrelevant considerations taken into account are that the ‘investigation should commence with events after April 1990’, and the decision of the AAT of 28 June 1996 on the applicant’s application for compensation under the SRC Act. There is no real foundation for these claims to be made out. The Commissioner explained why she did not commence her consideration of matters until those after X commenced her employment with the ATO. She was empowered by s 52(2)(c) of the SD Act to decline to inquire into an act if the complaint was made more than 12 months after the act. Moreover, for present purposes, the conduct of X towards the applicant prior to April 1990, is of only marginal significance as his ‘sex complaint’ concerns the conduct of the third, fifth and sixth respondents, and their awareness of any relationship between the applicant and X, or of any alleged improper conduct of X towards the applicant, arose only (as I have found) after 30 August 1992. Assuming in the applicant’s favour that the AAT decision of 28 June 1996 was as a matter of law something which the Commissioner was not entitled to have regard to, the Commissioner’s reasons for the decision of 2 April 1997 do not refer to it. There is no basis for finding that she did so.

   (5) Section 52(4) of the SD Act

2. The third, fifth and sixth respondents contended that, even if reviewable error on the part of the Commissioner were made out in respect of the decision of 2 April 1997, the Court should decline relief in its discretion. That is because relief under the ADJR Act is discretionary where adequate provision is made under another enactment for review of the decision complained of: s 10(2)(b)(ii) of the ADJR Act.

3. The SD Act does provide for review of the decision of the Commissioner under s 52(2)(c) and (d) by the President of the first respondent: s 52(5A) and s 52A(2). The applicant was notified of that right in the reasons for decision of 2 April 1997, as required by s 52(3). He had 21 days after notification of the decision to exercise that right: s 52(4)(b). Had he exercised that right, the decision of the Commissioner had to be referred to the President for review. Under s 52A(2)(b), the President then had either to confirm the Commissioner’s decision, or to continue to inquire into the conduct. The result would then be that, at some point, the Commissioner under s 52 would again decide not to inquire into the conduct (subject to further review by the President) or would refer the matter to the first respondent under s 57 for its inquiry.

4. The applicant chose not to avail himself of that option.  Instead, as noted above, he sought to join issue with certain matters in the reasons of the Commissioner of 2 April 1997.  The response of 16 April 1997 reminded him of the right of review, and the need to exercise it within the specified time.

5. In those circumstances, I would exercise my discretion to decline to grant relief to the applicant in respect of the ADJR claim, even if (contrary to my conclusion) some ground for relief under the ADJR Act were made out. I also have regard to the following further matters. The HREOC Act was amended in 1999, so that it can now only conciliate and if complaints of discrimination, conciliation is unsuccessful it must terminate its investigation. The SD Act was also amended in a complementary way at the time. There is also no power now for the first respondent to conduct the form of inquiry which the applicant sought in 1997. In fact, also, there had been, by April 1997, an extensive conciliation process during the first half of 1996 conducted by Ms Petherbridge; it had been unsuccessful. The elapse of time between April 1997 and those amendments was not due to any delaying conduct of any of the respondents in the conduct of these proceedings. Further, as the applicant accepts, the prospects of him returning to the ATO, and in particular to the DBA subsection, do not exist through subsequent conduct on his part.

   CONSIDERATION:  THE MISFEASANCE IN PUBLIC OFFICE claim

6. The misfeasance in public office claim is founded upon various communications by the third to fifth respondents between September 1993 and June 1997.  There is no dispute about the information which was published. 

7. According to the pleadings, the third respondent published the following documents:

   ‘i.Statement in or about March 1994 to an officer of the Sixth Respondent

   ii.Statement on or about 28/11/94 to the Second Respondent.

   iii.Statement on or about 27.2.95 to an officer of the Sixth Respondent.

   ivLetter dated 18/9/95 to an officer of the Sixth Respondent.

   v.Letter dated 4/1/96 to an officer of the Sixth Respondent.

   vi        Submission on or about 23/1/96 to the First Respondent.

   vii       Letters on or about 24/1/96 to the Second Respondent.

   viii      Submission on or about 4/7/96 to an officer of the Sixth Respondent.

   ix.       Letter dated 27/11/96 to an officer of the Sixth Respondent.’

   It is then alleged that the fourth respondent published a minute dated 24 April 1996 to an officer of the sixth respondent, and that the fifth respondent published a statement on about 9 September 1993 to an officer of the sixth respondent, and a submission on or about 18 January 1996 to the first respondent. 

8. Each of the third, fourth and fifth respondents acknowledges that they intended that the first, second and sixth respondents would rely upon such information as they conveyed in connection with their dealings with the applicant.

9. The applicant asserts that the effect of the information published by those respondents was that they had not discriminated against him on any grounds or sex, race or disability and had not subjected him to any detriment on the ground that he had made complaints under the SD Act, the RD Act or the DD Act. He further asserts that the information provided by those respondents sought in that material to justify their decision to remove the applicant from the DBA subsection of the ATO, and to give a commitment to X allowing her to veto the applicant’s return to the DBA subsection, and further that the material conveyed that the applicant should not be permitted to return to the DBA subsection because other staff members in that area were afraid of him and were unable to work with him or did not want him back.

10. The respondents have not specifically denied that their communications generally conveyed that sort of information.  For reasons appearing below, it is not necessary to refer in detail to their responses concerning the particular communications.  They deny that, in conveying that information, they acted with malice and intention to injure the applicant, or that they were reckless as to whether or not he would suffer injury.  The applicant claims that the first respondent relied upon that information to decide not to inquire further into the applicant’s sex discrimination complaint by its decision of 2 April 1997, and that the sixth respondent relied upon the information so as not to permit the applicant to return to his employment in the DBA subsection area.  He claims as a result he suffered injury to his reputation, and other losses sounding in damages.  The respondents deny that the first respondent relied upon the information, or that the sixth respondent relied upon the information, so that the applicant suffered loss and damage. 

11. The tort of misfeasance in public office is an intentional tort.  Hence, it is necessary for the applicant to show that the third, fourth and fifth respondents or one or other of them as a public officer engaged in conduct in purported discharge or fulfilment of that public office which was invalid or unauthorised and which was done intending to injure the applicant or knowingly in excess of power (although it may be sufficient to show that conduct was done recklessly to the possibility that it was beyond power):  see Sanders v Snell (1998) 196 CLR 329 at 346-350; Northern Territory v Mengel (1995) 185 CLR 307 at 345, 370.

12. In my view, the claim must fail for the simple reason that I am not persuaded that any of the third, fourth or fifth respondents, in undertaking the communications alleged against them, engaged in conduct which was invalid or unauthorised.  Nor am I persuaded that they or any of them intended to injure the applicant by the communications, or acted recklessly to the possibility that their communications or any of them were beyond power.  That conclusion reflects my overall impression of the credibility of each of those respondents.  As I have found, their motivation was to act in the best interests of both the applicant and X as well as the workplace generally when first confronted with the problem of X’s desire to return to work in late 1992 in the DBA subsection, and thereafter their motivation remained consistently to act in the proper interests of the applicant whilst properly responding to inquiries of the sixth respondent concerning the applicant’s sex discrimination complaint, his dealings with Comcare, and his continuing desire to return to the DBA subsection.  At no time did their communications have the objective of damaging the applicant.  At no time were they made recklessly indifferent to the applicant’s interests.  The communications were always couched in conservative language, and addressing matters which were required to be addressed.  They were not unsolicited communications.  Each had a purpose which the circumstances disclose.  Each was made in the routine of the duties of the relevant respondent, and did not involve any invalid or unauthorised conduct.

13. It is therefore unnecessary to address the other elements of the cause of action.  I should add, however, that I consider there is considerable force in the further contention of the third to fifth respondents that the cause of action is also not made out because the conduct complained of did not involve the exercise of public office in relation to a member of the public, but involved them each performing internal management functions within the ATO:  see e.g. Pemberton v Attorney-General [1978] Tas SR 1 at 14; Tampion v Anderson [1973] VR 715 at 720. It is not necessary to decide that matter.

14. In my judgment the misfeasance in public office claim must fail.

    consideration:  The defamation CLAIM

15. The defamation claim is against the second to fifth respondents. 

16. In my judgment the defamation claim must fail.  It must do so for a combination of reasons.  To explain that conclusion, it is necessary to refer briefly to some general principles, and then to address the individual communications said to be defamatory.

17. The publication of the allegedly defamatory material all occurred in the Australian Capital Territory.  Hence, the common law as modified by the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW) applies: see Seat of Government Acceptance Act 1909 (Cth); New South Wales Acts Application Act 1984 (ACT).

18. There is no dispute about a number of matters.

19. It is common ground that by November 1994 the ATO had engaged EASACT to provide services in connection with its ‘Employee Assistance Program’.  On 28 November 1994 the third respondent requested the second respondent, as agent for EASACT, to provide services in relation to the desire of the applicant to be returned to the DBA subsection, and the difficulties in returning him to the DBA subsection. 

20. In the course of responding to that request, various communications took place from the second respondent to the third respondent, including:

    ·letter dated 17 February 1995 (the first publication)

    ·letter dated 11 May 1995 (the second publication)

    ·letter dated 5 December 1995 (the third publication)

    On 23 January 1996 the third respondent republished that material to the first respondent.

21. On 24 January 1996 the third respondent published to the second respondent a copy of a letter dated 4 January 1996 from the third respondent to the applicant (the fourth publication).  The fourth publication was also provided by the fifth respondent to the first respondent by a handwritten memorandum under the heading ‘Documents provided by Geoff Seymour’ dated 18 January 1996.  The first to fourth publications were also republished by the third respondent to the ATO by memorandum dated 4 July 1996, addressed to a Mr Viney of the ATO.

22. On 24 April 1996, the fourth respondent published to an industrial officer of the Commonwealth Public Sector Union and to the ATO (Mr Viney) a memorandum of that date (the fifth publication).

23. It is axiomatic that the allegedly defamatory publications must be read in their context.  The context has been described in the findings set out above.  In their context, they will be defamatory of the applicant if they (or any of them) tend, in the minds of the ordinary reader, to injure his reputation:  see e.g. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 ff; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301, 304 (Harrison).

24. Even if the publications or some of them are defamatory, each is said to have been made on an occasion of qualified privilege.  A publication will have been made on an occasion of qualified privilege if it was made without malice, and was made by a person in discharge of some private or public duty (whether legal social or moral) and for the purpose for which the privilege is conferred:  Guise v Kouvelis (1947) 74 CLR 102 at 117; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330. Relevantly, here, the privilege will arise if the publications were made by a person under a duty to make the publication in question to a person who either has a duty to receive it or an interest in receiving it: Howe & McColough v Lees (1910) 11 CLR 361 at 369; Musgrave v Commonwealth (1937) 57 CLR 514 at 548.

25. The third, fourth and fifth respondents in their defence claim also that the republications by the third respondent to the ATO (Mr Viney) of material on 24 April 1996 and 4 July 1996 do not constitute publications in law as they were between employees of the ATO, ‘and there is no liability for publication in such circumstances’.

    
    

26. The applicant alleges that the publications meant and were understood to mean that he was managerially inept, incompetent, a disruptive influence within the workplace, a troublemaker, and potentially violent.  That is in issue.  He also alleges that the publication of the defamatory material led to him being refused permission to return to the DBA subsection area or any suitable employment, and injured his reputation and caused him other losses.  He seeks damages, including aggravated and exemplary damages.  The fact that the publications may have caused him loss in the way he alleges is expressly put in issue in the defences.  The second respondent disputes, both as a matter of fact and as a matter of law, that the first, second and third publications can or do carry the defamatory implications pleaded.  The third, fourth and fifth respondents contend that the words conveyed that staff of the ATO thought the applicant was a poor manager, that staff found the applicant difficult to work with and were uneasy about doing so, that staff were concerned that the applicant had potential for physical aggression, and that management were concerned that the return of the applicant to the workplace would be potentially destructive and not in the general interests of either the staff or the section generally.  They further allege that, if the words published were defamatory as alleged, they were true in substance and in fact, and it was for the public benefit that the matters set out should be published in the way they were.

27. The respondents also claim that the publications were made on an occasion of qualified privilege as the publications were made for the information of the applicant’s employer the ATO, that the second respondent (pursuant to the ATO engagement of EASACT) had a legal, social and moral duty to publish the material complained of to the recipients and the recipients had a reciprocal interest in receiving the publications, and that officers of the ATO, namely the third to fifth respondents, as employees of the ATO had the responsibility of dealing with personnel problems, staff concerns and work conditions and productivity within the ATO, and were also entitled to protection under the HREOC Act. 

28. Each of the first, second and third publications in its context is clearly a report of the views of other persons in the Data Services Section (or the DBA subsection) about the applicant.  They are expressed in those terms.  They do not convey, and could not reasonably be understood as conveying, that the views about the applicant are those of the second respondent.  Moreover, the circumstances in which those three publications came to be made (namely the engagement of the second respondent by the third respondent, first to assess the prospects of a mediated resolution, and later to endeavour to have those in the workplace and the applicant understand each others’ perspectives) fortifies that conclusion.  Indeed, the first publication expressly says that it makes no ‘assessment of the rights and wrongs of the situation’.  The second publication is also made in that context, as is the third publication.  The process of eliciting and identifying the staff concerns was (in part) so that the applicant could be aware of them, and could address them.

29. Read in context, the particular passages in the first, second and third publications of which the applicant complains all have that neutral character.  They do not, and in my view, could not, be understood by the third respondent or by an ordinary reader as conveying that in fact (or even as a matter of suspicion upon some reasonable basis) the applicant had the characteristics he asserts they conveyed about him.  Compare e.g. Harrison, at 301, 303; Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 at 828-831.

30. The only real live issue on whether the first, second and third publications were made on an occasion of qualified privilege is the issue of malice.  The occasion of those publications was clearly, otherwise, one of qualified privilege.  The second respondent, as part of his professional functions, was engaged by the ATO through the applicant’s immediate superior, the third respondent, to provide advice first about whether the applicant’s return to the DBA subsection in the face of staff opposition might be resolved by mediation, and then to explore the better understanding by those staff of the applicant’s position and vice versa.  The context was the applicant’s desire to return to the DBA subsection following his removal from that subsection in February 1993.  The second respondent and the third respondent had in the circumstances a duty and interest respectively to provide, and to receive, the reports of the second respondent pertaining to his engagement.  In fact, the process was undertaken with the applicant’s support and participation, in an attempt to resolve the reluctance of staff in the area the applicant had previously worked in to have the applicant return there.

31. I have found that, throughout, the second respondent was endeavouring to fulfil his engagement honestly.  He had no role in the selection of the group of staff to whom he spoke, nor any reason from his dealings with them to conclude that they were not appropriate persons to whom to speak for the purposes of his assignment, nor to conclude that they were being themselves other than genuine.  He made an inquiry of those staff members with whom he consulted to satisfy himself that they were appropriate persons to speak to.  The applicant in reply reiterated that he had expressed concern to the second respondent about the representative nature of the group interviewed – as he had – but there is then no evidence to indicate that the second respondent capriciously ignored that concern or proceeded to have discussions with a group he regarded as unrepresentative.  The applicant also did not challenge in cross-examination the evidence of Ms Hand as to how the interviewed group was selected.  The second respondent pursued the applicant’s discussion with him following the first communication, and in regard to the applicant’s response to his draft report prepared in July 1995.  The applicant also sought to contrast the report of Mr Magdulski with those of the second respondent as indicating, or tending to indicate, malice on his part.  I have remarked above that Mr Magdulski’s report was different in emphasis.  I do not think the fact of the difference is an indication of malice on the part of the second respondent.  It was obviously a consequence of a somewhat different interview group, but I have rejected the suggestion that the second respondent somehow engineered the group he interviewed.  The second respondent did not seek to conceal or underplay the report of Mr Magdulski; he simply included that material in the final materials he provided to the ATO on 5 December 1995 (and to the applicant shortly afterwards).

1. In the circumstances, it is not necessary to deal with the defence of justification on the part of the second respondent, that is the defence that the imputations alleged (if they were made out) were both truthful and were made in the public benefit.  Nor do I need to address the question of any damages the applicant might have been awarded if he were to succeed in his claim against the second respondent.

2. In my judgment, the fourth publication is also not defamatory of the applicant in the way he claims.  It was a letter from the third respondent to the applicant explaining the outcome of the process undertaken by the second respondent, and indicating the decision that the applicant would not then be returned to the DBA subsection.  The particular passage in the letter of which the applicant complains does not itself assert any particular characteristics on the part of the applicant, whether favourable or unfavourable.  Taken alone, I do not regard that passage as defamatory.  In the context of the fourth publication as a whole, and as the culmination of the process undertaken by the second respondent, that conclusion is fortified.

3. For the reasons given concerning the first to third publications, I also consider the fourth publication to the second respondent by the third respondent was an occasion of qualified privilege.  Informing the second respondent of the decision of the third respondent about the ATO action or decision following the second respondent’s process was one in which the necessary mutuality of relationship existed.  For the reasons given when discussing the credibility of the third respondent, I am also satisfied that he did not act maliciously when informing the second respondent of the matters in the fourth publication and he did not (as alleged) make the fourth communication to the second respondent knowing any statements within it were untrue or with reckless indifference to their accuracy.  Quite the contrary was the case.

4. It is convenient at this point also to deal with the passing of the fourth communication by the fifth respondent to the first respondent on 18 January 1996. I consider that that communication (assuming, contrary to my finding that the fourth publication was defamatory of the applicant) also was both made on an occasion of qualified privilege and in addition is a communication which is not actionable – in the absence of malice on the part of the fifth respondent – by reason of s 48(3) of the HREOC Act. Section 48(3) protects the communication from action ‘by reason only of’ the fact it occurred. The only potentially relevant fact to remove that protection in the present circumstances would be malice. In addition, the fact of the sex discrimination complaint, and the role and responsibility of the fifth respondent generally in relation to the applicant including the decision to move him from the DBA subsection made on 10 December 1992 clearly resulted in the fifth respondent having an interest or duty to pass the fourth publication to the first respondent. My reasons for finding that the fifth respondent was not generally motivated by malice towards the applicant are set out above. Those reasons flow through to his passing the fourth publication to the first respondent on 18 January1996.

5. The first to fourth publications were also passed by the third respondent to Mr Viney of the ATO on 4 July 1996.  He did so in the context of providing information to the ATO for the purpose of the ATO addressing the applicant’s dealings with Comcare.  Consequently, even if any of the first to fourth publications were defamatory of the applicant, as he alleges, their conveyance with the third respondent’s memorandum of 4 July 1996 was on an occasion of qualified privilege.  That privilege was not destroyed by malice on the part of the third respondent as I have accepted that he did not act maliciously towards the applicant.  That finding includes when he provided the memorandum to Mr Viney dated 4 July 1996.

6. In my judgment, the fifth publication was also not defamatory of the applicant as he alleges.  In the context in which it was made, it conveys a view of the fourth respondent about the placement of the applicant which conveys to the ordinary reader no view about the applicant’s personal characteristics but a decision made upon the basis of others’ perceptions about him but which the fourth respondent is conveying without adopting or without conveying the view that those perceptions are or might be correct.  It was also made on an occasion of qualified privilege, as it was made internally within the ATO in response to a minute of 19 April 1996 on a matter of occupational health and practice and to the applicant’s senior representative who had become involved in the matter on the applicant’s behalf.  It was made without malice on the part of the fourth respondent.  My general findings as to his credibility, and hence as to his motivation in his dealings with or concerning the applicant as he explained in his evidence, carry into the making of the fifth publication.

7. I do not therefore need to address the defence concerning the fourth and fifth publications that, if they conveyed the defamatory meanings asserted by the applicant, they were true in substance and in fact, and were communicated for the public benefit.  Nor do I need to address the contention that, at least in respect of internal communications between any of the respondents as officers of the ATO, there was no publication at all.  However, I indicate that I am not inclined to accept that contention:  see Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 366; Riddick v Thames Board Mills Ltd [1977] QB 881. I think that the law’s protection of such communications is more properly founded in the protection afforded by the doctrine of qualified privilege. Finally, I also do not need to address the quantum of any damages claim by the applicant against the third, fourth or fifth respondents.

8. For those reasons, as I indicated above, the defamation claim will be dismissed.

   conclusion

9. The lengthy nature of these reasons for judgment reflects the extensive period over which relevant events occurred, and the complexity of the circumstances confronting the parties from time to time.  I endeavoured to confine them to relevant matters.  Relevance across such a time span and such a breadth of dealings arose mainly from the significant allegations made by the applicant about the motives of the respondents, in particular of the third and fifth respondent, in their dealings with him.  Those allegations are as vehemently made in the initial application of 22 April 1997 as elsewhere, although they find expression also in certain of the applicant’s submissions.  At one point, somewhat cryptically, he said:  to a man with a hammer, every problem is a nail.  Whether or not that is an appropriate euphemism is a matter of opinion.  But, in the end, I have rejected the claims of the applicant that the third and fifth respondents, with others including officers of the first respondent, attempted to conceal discrimination by the ATO against him by colluding about the contents of their various documents, by misdescribing the nature of the applicant’s complaints, and by other steps contrived to avoid criticism and to delay proper consideration of the applicant’s circumstances.

10. As I observed above, to his credit, the applicant tempered those allegations during the hearing to the point that in his final oral submissions he no longer sought a finding that the third and fifth respondents were aiming to hurt him by their conduct.  He maintained the claim that they recklessly ignored his interests in giving priority to their decision to great him and X equally.  However, in sections of his final written submissions, the more directly critical claims made against those respondents were also preserved, including that they, together with the first respondent, manipulated the response to the applicant’s various communications to frustrate the proper addressing of his return to the DBA subsection.  I have indicated why I reject those allegations.

11. In the result, in my judgment, the application should be dismissed against the respondents.  I so order.  I will give the parties the opportunity to make submissions as to costs.

I certify that the preceding three hundred and seven (307) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:            21 December 2005

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Second Respondent:	S Dawson
Solicitor for the Second Respondent	Phillips Fox
Counsel for the Third to Sixth Respondents:	G Stretton
Solicitor for the Third to Sixth Respondents:	Australian Government Solicitor
Date of Hearing:	20, 21, 22, 23 and 24 September 2004 6 and 7 December 2004
Date of Judgment:	21 December 2005