FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited [2012] FCA 242
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Details
- AGLC
- Dye v Commonwealth Securities Ltd [2012] FCA 242
- Case
- [2012] FCA 242
- Decision Date
CaseChat Overview and Summary
The case of Dye v Commonwealth Securities Ltd was heard in the Federal Court of Australia. The plaintiff, Ms Dye, brought proceedings against her former employer, Commonwealth Securities Ltd (CommSec), and its parent company, the Commonwealth Bank of Australia (CBA), alleging various breaches of contract, defamation, and human rights violations. Key issues included whether there was an implied term of mutual trust and confidence in her employment contract, whether the employment via a subsidiary was a sham, and whether the Sex Discrimination Act 1984 (Cth) had extraterritorial effect in relation to the alleged sexual harassment.
The court examined the nature of the employment relationship and the incorporation of employer policies and procedures into the employment contract. It also considered the implications of the alleged sexual harassment, which occurred partly in New Zealand, and the jurisdiction of the Federal Court over such matters. Furthermore, the court delved into the principles of qualified privilege in defamation law and the potential for vicarious liability in relation to workplace harassment.
The court concluded that Ms Dye's claims were unsubstantiated and that there was no evidence to support her allegations of sexual harassment. The court held that the employment relationship was not a sham, and the implied term of mutual trust and confidence did not extend to the allegations of sexual harassment. The court also determined that the Sex Discrimination Act did not have extraterritorial effect in this context. Consequently, the court dismissed all claims brought by Ms Dye and ordered her to pay the respondents' costs, subject to taxation if not agreed.
The court's judgment underscores the importance of providing a solid evidentiary foundation for claims of sexual harassment and the limitations of implied contractual terms in employment relationships. The dismissal of the claims and the direction concerning costs highlight the necessity for plaintiffs to substantiate their allegations with credible evidence.
The court examined the nature of the employment relationship and the incorporation of employer policies and procedures into the employment contract. It also considered the implications of the alleged sexual harassment, which occurred partly in New Zealand, and the jurisdiction of the Federal Court over such matters. Furthermore, the court delved into the principles of qualified privilege in defamation law and the potential for vicarious liability in relation to workplace harassment.
The court concluded that Ms Dye's claims were unsubstantiated and that there was no evidence to support her allegations of sexual harassment. The court held that the employment relationship was not a sham, and the implied term of mutual trust and confidence did not extend to the allegations of sexual harassment. The court also determined that the Sex Discrimination Act did not have extraterritorial effect in this context. Consequently, the court dismissed all claims brought by Ms Dye and ordered her to pay the respondents' costs, subject to taxation if not agreed.
The court's judgment underscores the importance of providing a solid evidentiary foundation for claims of sexual harassment and the limitations of implied contractual terms in employment relationships. The dismissal of the claims and the direction concerning costs highlight the necessity for plaintiffs to substantiate their allegations with credible evidence.
Orders
Orders of the court
HE COURT ORDERS THAT: 1. The proceeding commenced by application filed in this Court on 24 July 2008 is dismissed.2. Except as provided by any prior order, the applicant shall pay the respondents’ costs of and in connection with the proceeding, such costs to be taxed if not agreed. THE COURT DIRECTS THAT: 3. Any further application concerning costs shall be filed and served within 14 days of this judgment, supported by adequate written submissions.4. Written submissions opposing any such application must be filed and served within a further 14 days.5. A written reply may be filed and served within a further seven days.6. Any further application concerning costs will be dealt with thereafter on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
In short, the case for any kind of compensation or damages which did not depend on allegations of sexual harassment was futile. The case for compensation for sexual harassment was based on falsehood.ASSESSMENT OF THE EVIDENCEThe nature and weight of different forms of evidence Before the Federal Court proceedings were transferred to my docket, an order was made by a judge of the Court that lay evidence in the proceedings was to be given orally rather than on affidavit. That was the procedure also intended for the defamation proceedings, before they were transferred to this Court. The result was that evidence of conduct, or conversations, upon which any party wished to rely, should have been the subject of direct oral evidence. However, there are other ways in which evidence may also be provided in such circumstances and it is necessary at the outset to say something about that general topic. The Evidence Act 1995 (Cth) (“the Evidence Act”) uses the term “representations” to refer to assertions of fact. Representations, which are admitted as evidence about some matter, may be oral or written. Oral representations may be evidence given directly in a case about some particular matter of fact, or may be things said to other people outside court. In the second possibility they may have been things said at the time that something happened, at a later time about something which happened or, sometimes, before something happened (e.g. a threat). There are technical rules governing what oral (and written) statements may be admitted into evidence but I need not discuss them here. Written representations also take various forms. Sometimes direct evidence in a case is allowed to be given in writing in the form of an affidavit or a witness statement. In the present case, as I have mentioned, an order was made in the Federal Court proceedings, well before the trial started, that evidence should be given orally. The arrangements for the defamation proceedings fitted neatly enough with this requirement. An exception was made for expert reports. A possibility arose later of short, uncontentious, affidavit evidence also being admitted. Generally speaking, all representations admitted as direct evidence of fact in the proceedings were given orally at the trial. However, out of court written representations of fact were also admitted as evidence. Many were letters, emails, file notes or other contemporaneous documents. Some were admitted as “business records”. Once admitted into evidence, the representations of fact contained in such documents stood as some evidence of the facts asserted in them, although it was still necessary to consider the reliability and weight of any such document. Even documents created contemporaneously with an event vary in reliability, and in honesty, and may not be an accurate or honest recording of the factual position at that time. Another form of written representation, in the case of a number of witnesses, consisted of written records of assertions made by the witness of their version of events about particular matters which had been recorded in the form of a statement, diary note etc, where the record was intended to state the position of the witness in a more formal way and for future reference about those events if necessary. Some examples are statements made during investigations carried out by, or on behalf of, the bank about various allegations made progressively by Ms Dye from early 2007.
Decision
Reasons for decision
In the folder of material evidencing Ms Dye’s unsuccessful job applications, to which I referred a short time ago, were two inquiries she made in August 2008 whether “CBA’s comments to the press about my performance” were hindering (or were likely to hinder) her prospects. The responses were equivocal. Having regard to Mr de Berg’s evidence, these two responses are entitled to no weight. In any event, they are entirely insufficient to support any claim for damages. Conclusion on damages It was a fatal aspect of Ms Dye’s case in both proceedings, based on evidence led by her in her case, that no respectable foundation for damages or compensation was provided. In truth, the addition of a multiplicity of further pleaded causes of action to accompany the central allegation of sexual harassment, added nothing of utility to the proceedings and did not provide a foundation for any additional measure of compensation. The core question was, and would always have been, whether compensation for sexual harassment was warranted. That issue turned and would always have turned, on the question of whether sexual harassment had occurred. That part of the case is lost and no compensation is available. COSTS With few exceptions, costs in interlocutory matters have not yet been dealt with. They are either reserved or would be costs in the overall proceedings. Costs of proceedings in the Supreme Court prior to the transfer of those proceedings were awarded against Ms Dye at the time the proceedings were transferred on her application. I see no reason to interfere or amend any costs orders already made. None has been suggested. Normally the other costs of the overall proceedings would follow the outcome of the proceedings in the absence of an application for some other order. To date no party has made, or foreshadowed, an application for some other order. Accordingly I shall order that the respondents’ costs of both proceedings, to the extent not already the subject of any order, be paid by the applicant, such costs to be taxed if not agreed. If any party should seek some other order concerning costs, a written application to that effect, supported by adequate written submissions must be filed and served within 14 days of this judgment. Any written response must be filed and served within a further 14 days and any reply, also in writing, within a further 7 days. No extensions of time will be granted. Applications or submissions not filed within the time allowed will be disregarded. Any application for costs will be dealt with on the papers.A CONCLUDING OBSERVATION This litigation has imposed a very considerable burden on the respondents. I have no doubt, apart from anything else, that the legal costs incurred in this case by the respondents have been very substantial. They may or may not be recovered in whole or in part. The incentive to reach a “commercial” settlement of the proceedings must have been considerable. However, the costs incurred, and other burdens assumed, by the respondents could not have been avoided if the truth was to emerge. The bank and CommSec have shown great loyalty to Mr Blomfield and Mr Patterson in pursuing that objective.
Ratio Decidendi
Legal Principle Established
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