Dye v Commonwealth Securities Ltd

[2012] FCA 242

FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited [2012] FCA 242

Citation:

Dye v Commonwealth Securities Limited [2012] FCA 242

Parties:

VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED, RALPH NORRIS and MICHAEL BLOMFIELD

VIVIENNE LOUISE DYE v COMMONWEALTH BANK OF AUSTRALIA and BARBARA CHAPMAN

File numbers:

NSD 1165 of 2008
NSD 1526 of 2010

Judge:

BUCHANAN J

Date of judgment:

16 March 2012

Catchwords:

CONTRACTS – employment contract – implied term of mutual trust and confidence and/or good faith discussed – incorporation of employer’s policies and procedures discussed – whether employment of employee via a subsidiary company was a sham

DEFAMATION – qualified privilege – reply to attack

HUMAN RIGHTS – discrimination – allegations of sexual harassment – jurisdiction of the Federal Court – some alleged conduct occurred in New Zealand – whether Sex Discrimination Act 1984 (Cth) has extraterritorial effect – vicarious liability – workplace participant

TORTS – injurious falsehood – whether damage to trade or business of an employee  

Legislation:

Defamation Act 2005 (NSW) s 8
Disability Discrimination Act 1992 (Cth) ss 4, 5, 15
Evidence Act 1995 (Cth) s 142
Fair Trading Act 1987 (NSW) ss 42, 46
Fair Work Act 2009 (Cth)
Limitation Act 1969 (NSW) ss 14B, 56A
Sex Discrimination Act 1984 (Cth) ss 5, 28A, 28B, 94, 106
Trade Practices Act 1974 (Cth) ss 52, 53B
Workplace Relations Act 1996 (Cth) s 650

Cases cited:

Ballina Shire Council v Ringland (1994) 33 NSWLR 680
B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brannigan v Commonwealth of Australia (2000) 110 FCR 566
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Cicciarelli v Qantas Airways Ltd [2012] FCA 56
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176
Finance Sector Union of Australia v Commonwealth Bank of Australia [2003] FCA 435
Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158
Gillies v Downer EDI Ltd [2011] NSWSC 1055
Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62
Loveday v Sun Newspapers Ltd (1938) 59 CLR 503
McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903; 168 IR 375
McDonald v State of South Australia [2008] SASC 134
Modbury Triangle v ANZIL (2000) 205 CLR 254
Palmer Bruyn and Parker Pty Ltd v Parsons (2001) 208 CLR 388
Penton v Calwell (1945) 70 CLR 219
Roberts v Bass (2002) 212 CLR 1
Rogan-Gardiner v Woolworths Ltd [2010] WASC 290
State of South Australia v McDonald (2009) 104 SASR 344; [2009] SASC 219
State of New South Wales v Lepore (2003) 212 CLR 511
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796
Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; (2011) 279 ALR 183
Van Efferen v CMA Corporation Limited [2009] FCA 597; 183 IR 319
Vijayakumar v Qantas Airways Ltd [2009] FCA 1121

Dates of hearing:

7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 28, 29, 30, 31 March, 4, 5, 6, 7, 11, 12, 13, 18, 19, 20, 21, 27, 28 April, 9, 10, 11, 12, 16, 17, 18, 19, 23, 24 May, 18, 19, 20, 21, 25, 26, 27, 28 July, 1, 2, 3, 8, 9, 10, 11, 15, 16, 17, 18, 29, 30, 31 August, 1, 26, 27, 28, 29 September, 4, 5, 6, 18, 19, 20, 31 October, 1, 2, 3, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 28, 29, 30 November, 1, 5, 6, 7, 8 December 2011

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

744

Counsel for the Applicant:

Mr PE King, Mr R Rasmussen, Ms L Evans

Solicitor for the Applicant:

McKells Solicitors

Counsel for the Respondents:

Mr P Gray SC, Mr M Richardson

Solicitor for the Respondents (NSD 1165 of 2008):

Freehills

Solicitor for the Respondents (NSD 1526 of 2010):

Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1165 of 2008

BETWEEN:

VIVIENNE LOUISE DYE
Applicant

AND:

COMMONWEALTH SECURITIES LIMITED
First Respondent

RALPH NORRIS
Second Respondent

MICHAEL BLOMFIELD
Third Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	16 MARCH 2012
WHERE MADE:	SYDNEY

THE 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.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1526 of 2010

BETWEEN:

VIVIENNE LOUISE DYE
Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA
First Respondent

BARBARA CHAPMAN
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	16 MARCH 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding commenced by statement of claim filed in the Supreme Court of New South Wales on 15 April 2009 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.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1165 of 2008

BETWEEN:

VIVIENNE LOUISE DYE
Applicant

AND:

COMMONWEALTH SECURITIES LIMITED
First Respondent

RALPH NORRIS
Second Respondent

MICHAEL BLOMFIELD
Third Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1526 of 2010

BETWEEN:

VIVIENNE LOUISE DYE
Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA
First Respondent

BARBARA CHAPMAN
Second Respondent

JUDGE:

BUCHANAN J

DATE:

16 MARCH 2012

PLACE:

SYDNEY

TABLE OF CONTENTS

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[1]
Broad employment outline........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[4]
The two proceedings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[17]
Brief introduction to the sexual harassment allegations........ ........ ........ ........ ........ ........ .....	[26]
ASSESSMENT OF THE EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[35]
The nature and weight of different forms of evidence........ ........ ........ ........ ........ ........ ......	[35]
Credit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[49]
Ms Dye’s Credit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[51]
The applicant’s mother – Mrs Vicki Dye........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[60]
Respondents’ witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[64]
THE COURSE OF MS DYE’S EMPLOYMENT........ ........ ........ ........ ........ ........ ........ ........	[71]
CommSec as employer........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[78]
Reporting to Ms Bradbury........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[88]
Going to work with Mr Patterson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[126]
Events in New Zealand........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[151]
Initial contact with Mr Blomfield........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[177]
Events of 26 – 30 June 2006........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[193]
Some further encounters with Mr Blomfield........ ........ ........ ........ ........ ........ ........ ........ ......	[218]
Professional and social contact with Mr Patterson after 30 June 2006........ ........ ........ ....	[222]
Reporting to Ms Bayer-Rosmarin........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[238]
Going to work in Local Business Banking........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[243]
Sick Leave and Workers Compensation........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[317]
2006/2007 Performance Review........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[336]
Suggested demotion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[342]
Mr Morrison’s engagement........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[342]
Ms Dye’s duties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[344]
Exclusion from work events........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[352]
Review of staff requirements in Local Business Banking........ ........ ........ ........ ........ ........ ..	[353]
Managing the medical certificates........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[358]
Payment of bonus........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[365]
Alleged breach of confidentiality and advice of redundancy........ ........ ........ ........ ........ ....	[366]
Termination of employment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[375]
An allegation of contrived redundancy........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[382]
Investigation by Mr Matthews........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[387]
PARTICULAR ALLEGATIONS OF SEXUAL HARASSMENT........ ........ ........ ........ ....	[401]
Ms Dye’s various written statements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[402]
13 April 2006 (Establishment Bar and afterwards)........ ........ ........ ........ ........ ........ ........ ...	[423]
1 June 2006 (dinner at a Chinese restaurant and afterwards)........ ........ ........ ........ ........ ..	[435]
9 June 2006 (Ms Dye’s apartment)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[443]
12 June 2006 (watching the World Cup Soccer match)........ ........ ........ ........ ........ ........ .....	[462]
13 June 2006 (Ms Dye’s apartment)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[468]
15 June 2006 (Le Chifley and afterwards)........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[475]
16 June 2006 (Hyatt Hotel and afterwards........ ........ ........ ........ ........ ........ ........ ........ ........ )........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[499]
22 June 2006 (Auckland, New Zealand)........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[504]
12 July 2006 (encounter with Mr Blomfield in a lift)........ ........ ........ ........ ........ ........ ........ .	[508]
8 August 2006 (Westin Hotel and afterwards)........ ........ ........ ........ ........ ........ ........ ........ ....	[509]
13 April 2007 (Mr Patterson’s house)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[526]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[540]
MEDIA ATTENTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[541]
CAUSES OF ACTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[573]
The pleadings in outline........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[573]
Claims in contract........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[598]
Breach of implied terms of contract........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[598]
Breach of express terms of contract........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[616]
Damages in contract........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[627]
The Sex Discrimination Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[628]
Sexual harassment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[629]
Sex Discrimination........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[638]
Victimisation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[640]
Disability Discrimination........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[647]
Workplace Relations Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[652]
Trade Practices Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[653]
Fair Trading Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[658]
Injurious falsehood........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[659]
Injurious falsehood – CommSec........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[659]
Injurious falsehood – Mr Norris........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[674]
Injurious falsehood – Mr Blomfield........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[677]
Defamation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[684]
Defamatory meaning........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[685]
Truth........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[702]
Privileged occasion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[703]
Reply to attack........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[712]
Malice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[718]
DAMAGES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[719]
Compensation for sexual harassment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[723]
Damages or compensation for injury........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[724]
Damages for economic loss........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[735]
Loss of reputation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[739]
Conclusion on damages........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[741]
COSTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[742]
A CONCLUDING OBSERVATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[744]

REASONS FOR JUDGMENT

INTRODUCTION

1. From March 2005 to November 2007 the applicant (Ms Dye) was an employee of Commonwealth Securities Limited (“CommSec”) working in the service of the Commonwealth Bank of Australia (“CBA”).  I will deal later with the nature of this arrangement.  I shall often refer to “the bank” to describe the overall organisation in which Ms Dye was employed. 

2. In mid April 2008, in an incandescent blaze of salacious publicity, daily newspapers in Sydney, Melbourne and Brisbane published on their pages and/or on the internet allegations by Ms Dye that she had been sexually harassed by two senior bank officers, Mr Michael Blomfield and Mr Angus Patterson.  Almost immediately the bank responded publicly that such allegations as had been raised with it by Ms Dye had been fully investigated, that the bank was satisfied that the allegations were unfounded and they had only been made by her when her work performance had been declared unsatisfactory.  After a long and unnecessary case in which Ms Dye made the same (and worse) allegations, I have concluded that Ms Dye’s allegations which were published in the media in 2008 and those which were made in the proceedings in this Court were in substance false.

1. Some months before the allegations were published Ms Dye’s employment with CommSec had come to an end.  Spinning like satellites around the central allegations of sexual harassment (and worse) in the present case were a variety of subsidiary contentions, both factual and legal, which were intended to grasp at some form of financial relief for the loss of Ms Dye’s employment with CommSec and the alleged loss of her reputation as a result of the bank’s public response to the allegations published in the media.  The causes of action, which must be considered in this case, concern sexual harassment, discrimination on the grounds of sex, disability discrimination, victimisation, breach of contract, breach of industrial legislation, misleading and deceptive conduct, injurious falsehood and defamation.  The causes of action Ms Dye chose to advance are each without any factual foundation or legal substance.  They will each be rejected.

   Broad employment outline

2. Ms Dye was employed by CommSec, working in the overall service of CBA, from 7 March 2005 until 22 November 2007, a period of less than three years.  Of that period, Ms Dye was at work for only about two years.  She then spent about seven months on sick leave.  Eventually her position was made redundant.  Having regard to that circumstance, and to the questions which arose about Ms Dye’s work performance, I reject any suggestion at the outset that Ms Dye’s employment with CommSec was of a kind, or duration, which could provide a basis for any reasonable or legitimate expectation of indefinite or even particularly long term employment.  Ms Dye, for her own part, showed no particular commitment to long term employment with CommSec or the bank, unsuccessfully seeking employment elsewhere during this period. 

3. I shall refer later to the seven level management structure, which was in place throughout the bank’s operations, including CommSec.  For the whole of her employment Ms Dye was employed at the same level within the CBA and CommSec structure – level 2.  She reported directly to four different managers according to the bank’s reporting structure.  First, Ms Dye was recruited to work for, and reported to, Ms Nicola Bradbury (level 4).  In early May 2006 following a re-organisation of responsibilities (when Ms Bradbury went on leave, before Ms Bradbury’s position became redundant) Ms Dye transferred to the supervision of, and reported directly to, Mr Patterson (level 4).  On about 5 September 2006, following another re-organisation of responsibilities (which affected Mr Patterson), Ms Dye transferred to the supervision of, and reported to, Ms Kelly Bayer-Rosmarin (level 4).  In November 2006, Ms Dye obtained a position as a business analyst (level 2) reporting to Mr Anand (Arnie) Selvarajah (level 4) in the Mid-Eastern Australia division of Local Business Banking (“LBB Mid-East”) an operating division of the bank under the leadership of Mr Blomfield (level 5).  That was Ms Dye’s nominal position until 9 November 2007, when her position was declared redundant, although she had made no contribution to it for almost the preceding eight months.

4. Assessment of Ms Dye’s work performance during her employment was not universally favourable.  Neither was it universally unfavourable.  Mr Patterson regarded her efforts as consistently “exceeding expectations”.  Ms Bradbury and Mr Selvarajah came fairly quickly to a different view.  Ms Bayer-Rosmarin had no occasion to deal with the matter in any formal way in the short period in which Ms Dye reported to her. 

5. Ms Dye appeared to have particular problems working with other women.  Over a period of time a picture developed, at least from the reports which were made to her managers (and others in the bank), that she tended to be high-handed and dismissive of the efforts of others.  She was universally regarded as ambitious but not universally regarded as co-operative.

6. During her period reporting to Ms Bradbury difficulties of this kind developed to a point where Ms Bradbury thought it necessary to speak with Ms Dye about them.  Ms Dye took it badly.  At the same time, Ms Bradbury sought ways to assist Ms Dye in gaining some insights into her own behaviour.  Ms Dye seems to have misunderstood the reason for this assistance and again reacted badly to observations which emerged from others which did not correspond to her own view of her capacities and character.  These matters, for reasons to be explained, were not the subject of any ultimate formal record but they emerged in the evidence in response to criticisms of Ms Bradbury and in response to Ms Dye’s own assessment of her work performance during that period.

7. By contrast, Ms Dye appears to have enjoyed a generally fruitful professional and personal relationship with Mr Patterson apart from one occasion which arose from a disagreement during a work trip to New Zealand.  That matter was, shortly thereafter, fully and amicably resolved and for the rest of their period working together there appeared to have been no problems.  Nevertheless, Ms Dye did not enjoy a particularly cordial relationship with others who reported to Mr Patterson, other women in particular.  Mr Patterson, as Ms Dye’s manager, was required to make two formal assessments of her work performance.  In each he judged her to have exceeded expectations.

8. Ms Bayer-Rosmarin was Ms Dye’s manager for a period of less than two months.  She was not required to make any formal assessment of her work.  The evidence does not suggest any particular issues between them although there is some reason to believe that Ms Dye became distressed when first she did not receive elevation to level 3 (as she suggested to Ms Bayer-Rosmarin she might) and she was then subject to a requirement to report through another member of her own team.  Those events corresponded with some evidence that Ms Dye sought assistance for feelings of anxiety concerning her employment. 

9. Ms Dye’s period working in LBB Mid-East, reporting to Mr Selvarajah, was complicated in part by what appears to have been her desire for greater attention from Mr Blomfield.  In addition, difficulties soon emerged concerning her communication and relationships with others.  Particular difficulties appear to have arisen with two women reporting directly to Mr Blomfield.  They each reported to Mr Blomfield that Ms Dye was difficult to deal with.  Ms Dye for her part regarded them as cold towards her. 

10. Soon after she commenced in LBB Mid-East, Ms Dye began to draw Mr Blomfield’s attention to her unhappiness and to seek more personal attention from him.  Within a short time Ms Dye’s sense of frustration that Mr Blomfield was ignoring her got the better of her and about one month after commencing in LBB Mid-East she sent a very aggressive text message to Mr Blomfield during a work function.  This incident was the trigger for direct counselling by Mr Selvarajah in December 2006. Things seemed to improve and then again matters of concern arose.  There was a further meeting with Mr Selvarajah on 1 February 2007.  Mr Selvarajah made it clear that more formal steps were possible, and perhaps in prospect.  Ms Dye reacted by complaining to Mr Blomfield about Mr Selvarajah and Mr Selvarajah’s management of her.  Mr Blomfield thought it inappropriate to deal with the issue himself and a review was established to examine Ms Dye’s complaints.  They did not involve any complaints against Mr Blomfield.  Indeed, Ms Dye’s purpose was to see Mr Selvarajah replaced as her direct manager by Mr Blomfield himself.  The outcome of the review was not favourable to Ms Dye.  This corresponded with further evidence of distress on her part.  She commenced to see a psychiatrist.  In the meantime she went on sick leave and thereby in a practical sense (and probably intentionally) avoided any escalation of the matter from Mr Selvarajah.  She did not return to work.

11. Ms Dye went on sick leave on 15 March 2007 (attributed to stress).  Ms Dye remained on sick leave until almost the end of her employment in November 2007.  Early in that period she consulted a psychiatrist but was quickly declared free of psychological or psychiatric injury or manifestation.  Nevertheless, Ms Dye did not return to work and another medical practitioner co-operated with her in an attempt later to manage a return to work in a way which suited her best.  She made a claim for workers compensation.  For the first time she made allegations against Mr Blomfield but these were not drawn to his attention for direct response.  The claims Ms Dye then made were investigated and rejected.  Eventually the salary available to her on sick leave and for any outstanding annual leave was exhausted and she entered a period of leave without pay.  She attempted, with the assistance of her general practitioner and the certificates he wrote, to persuade the bank that she should return to work in a position with no contact with Mr Selvarajah or Mr Blomfield.  Such a position could not be found.  Finally she had her general practitioner certify her fit for work without restriction.

12. By this time, and independently, a review of staffing costs in LBB had caused a decision to be taken that Ms Dye’s business analyst position in LBB Mid-East was not needed and should be declared redundant.  Ms Dye was returned to full pay but in early November 2007 was advised that her position had been declared redundant.  Ms Dye’s position of business analyst had remained unfilled during the whole of her extended absence.  Upon the declaration of redundancy there was a contractual obligation upon CommSec to search for another position and CommSec was required to consult with Ms Dye about a position if one was found.  Otherwise CommSec had an express contractual right to terminate Ms Dye’s employment on payment of identified entitlements which were in due course paid.  Efforts were made to find Ms Dye another position.  No position was identified in the short time thereafter before Ms Dye chose to see her employment terminated.  Notwithstanding the efforts being made to identify an alternative position for Ms Dye, due to an administrative error, her final pay was made up and sent to her.  When the error was identified an offer was made to reverse it.  The offer was repeated.  The offer was not acted upon by Ms Dye who, at this point, effectively acquiesced in the erroneous termination of her employment.  Apparently, she preferred to accept the situation and pursue her remedies elsewhere.  

13. It is important to note, therefore, that concern about Ms Dye’s work performance was not the reason for the cessation of her employment.  That basic and simple fact has a devastating consequence for some of the present causes of action, even if their other elements had been established.

14. Further accusations against Mr Blomfield were made by Ms Dye in late October 2007.  Those accusations were also investigated and rejected.  Accusations against Mr Patterson (apart from matters arising from the incident in June 2006 in New Zealand) were not seriously advanced until after Ms Dye’s employment had ceased.

    The two proceedings

15. After her employment came to an end, Ms Dye made claims to the then Human Rights and Equal Opportunity Commission (“HREOC”) that she had been sexually harassed, discriminated against because of her sex, discriminated against because of a disability and victimised because she made complaints of sexual harassment.  At first, the sexual harassment allegations were principally focussed on Mr Blomfield.  Within a short time they were extended to include Mr Patterson.  The complaint went to conciliation but a settlement was not reached.

16. Shortly thereafter, on Monday 14 April 2008, The Sydney Morning Herald newspaper in Sydney (“the SMH”) published a report of allegations of sexual harassment against Mr Blomfield.  The same day The Age newspaper in Melbourne published the same report of allegations against Mr Blomfield and also referred to allegations against Mr Patterson.  On 16 and 17 April 2008, The Daily Telegraph newspaper in Sydney published more detailed articles.  It also made extensive specific allegations against both Mr Blomfield and Mr Patterson available on its website.  At around that time other newspaper articles also appeared to which I will refer in due course.

17. The articles were each based on a 181 page document provided to two journalists, Ms Vanda Carson (SMH and The Age) and Mr Heath Aston (The Daily Telegraph) by Ms Dye’s industrial representative, Mr Peter Rochfort.  I will refer to this document hereafter as “the April 2008 published allegations”.  It was largely (although not entirely) an amalgam of two documents provided to HREOC in support of Ms Dye’s complaint to it.  It was not provided to HREOC and, I am satisfied, came into its own form after those two documents had been independently and earlier provided to HREOC.  Nevertheless, with limited qualifications, it represented what Ms Dye had alleged to HREOC about a very wide range of issues arising out of her employment, including the suggestion she had been sexually harassed by Mr Blomfield and sexually harassed (and assaulted) by Mr Patterson.

18. I am satisfied that the articles in the SMH, The Age and The Daily Telegraph which appeared on those days were the result of a strategy devised by Ms Dye and her advisers.  At the time the articles appeared, Mr Ralph Norris and Ms Barbara Chapman (the two respondents not so far mentioned) were the CEO and a Group Executive respectively of CBA.  The bank responded swiftly to the articles, through Mr Norris and Ms Chapman, telling the newspapers and staff of both CBA and CommSec that appropriate investigations had been carried out and Ms Dye’s claims had been found to be unfounded and without basis.  In addition, it was asserted that Ms Dye had only begun to make the allegations which were published after her work performance was declared unsatisfactory.  Those responses were substantially true.  Insofar as Ms Dye had raised allegations of the nature published in the articles they were, in the context in which they were raised, investigated and rejected.  Such allegations as had been made by Ms Dye were made as part of her efforts to answer or deflect concerns about her work performance.  

19. The bank, in addition, told the newspapers and its staff (and those of CommSec) that it would support Mr Blomfield and Mr Patterson in any action they might take to clear their names.  Mr Blomfield took up the offer.  The SMH and The Age apologised.  The Daily Telegraph did not.  Mr Blomfield sued News Limited, the publisher of The Daily Telegraph, in the Supreme Court of New South Wales on each of the articles published on 16 and 17 April 2008.  I will refer to those proceedings as “the Blomfield proceedings” as they were referred to in the proceedings in this Court.  News Limited claimed the allegations in the articles were true and relied on the truth of the allegations as a defence to Mr Blomfield’s action against it.  During the Blomfield proceedings in September 2009, while Ms Dye was in cross-examination, News Limited withdrew its defence and the proceedings settled in Mr Blomfield’s favour for an undisclosed sum.  Withdrawal of the defence has no probative significance in the present case, which must be decided on the evidence before this Court.

20. Meanwhile, Ms Dye had on 24 July 2008 commenced proceedings in this Court against CommSec alleging sexual harassment and other causes of action.  I will refer to these proceedings as “the Federal Court proceedings”.  Later, constrained to act within a statutory time limit of 12 months after publication, on 15 April 2009 she commenced defamation proceedings in the Supreme Court of NSW against CBA and Ms Chapman concerning the statements made by Ms Chapman to bank staff and others, which I will refer to as “the defamation proceedings”.  Still later, Ms Dye was given leave to join Mr Norris to the Federal Court proceedings against CommSec and to allege injurious falsehood by him and CommSec arising from statements made by him to the newspapers.  Ms Dye was also given leave to join Mr Blomfield to the Federal Court proceedings and to allege injurious falsehood and other additional matters against him.

21. The defamation proceedings commenced in the Supreme Court of NSW in 2009 were later transferred to this Court.  Ultimately, both proceedings and all causes of action were heard together.

22. None of the causes of action succeed.  All fail on the facts.  Many are misconceived.  None, except the allegations of sexual harassment, discrimination and victimisation if proved, would have provided a foundation for damages.  Essentially that is so for two reasons: first, the reasons why Ms Dye’s employment came to an end are not attributable to the matters raised by any of the causes of action; secondly, any difficulty Ms Dye might have in obtaining future employment and any damage to her reputation is, on the evidence in her own case, the result of the publicity of her own allegations in April 2008 which, I am satisfied, was arranged on her behalf and with her knowledge, agreement and active participation.  Those two matters combine to defeat any claim for damages based on loss of employhment, possible loss of future employment or any alleged loss of reputation. 

23. The only possible avenue for a financial solace lay in the proceedings under the Sex Discrimination Act 1984 (Cth) (“the SDA”), which were based on claims of sexual harassment, discrimination on the grounds of sex and victimisation. Of those claims, it was the claim of sexual harassment which raised the most serious issues and which, if true, might have provided a basis for some measure of compensation.

    Brief introduction to the sexual harassment allegations

24. Over a period of time the allegations made by Ms Dye have been added to and modified.  That process commenced before publication of her allegations in April 2008. The allegations that were then published in the newspapers had been constructed, rewritten and refined a number of times before they were put into the hands of the media.  The process did not stop at that point.  After mediation of the Federal Court proceedings failed in November 2008, Ms Dye drafted, and then rewrote, further more serious allegations against Mr Patterson and then placed them in the hands of the New South Wales Police.  Mr Patterson was not told by the NSW Police that accusations of criminal conduct had been made against him to the police.  No serious investigation ensued.  As will be seen, I have concluded that the allegations against Mr Patterson in Ms Dye’s witness statement to the NSW Police are false.

25. At the trial, the allegations of sexual harassment against Mr Patterson and Mr Blomfield were concentrated upon the following dates and alleged behaviour:

    13 April 2006 at Establishment Bar, Sydney – unwelcome sexual conduct by Mr Patterson in which he put inappropriate and intimate questions to Ms Dye.

    9 June 2006 in Ms Dye’s apartment – Mr Patterson physically assaulted Ms Dye and forcibly digitally penetrated Ms Dye, anally and vaginally.

    13 June 2006 in Ms Dye’s apartment – Mr Patterson again physically assaulted Ms Dye with a view to obtaining sexual gratification.

    15 June 2006 at Le Chifley bar in Sydney and afterwards – Mr Blomfield engaged in unwanted sexual conduct towards Ms Dye including an implicit request for sex.

    16 June 2006 – Mr Patterson made further explicit requests for sexual favours and physically assaulted and attempted to kiss Ms Dye in an office lift against her will.

    22 June 2006 in New Zealand – Mr Patterson advanced a sexual proposition.

    12 July 2006 – Mr Blomfield made a sexual overture to Ms Dye in a lift.

    8 August 2006 at the Westin Hotel, Sydney – Mr Blomfield engaged in unwanted sexual conduct towards Ms Dye.

    13 April 2007 in Mr Patterson’s home – Mr Patterson again physically assaulted Ms Dye with a view to obtaining sexual gratification.

26. Having regard to the nature of the allegations, the gravity of the damage caused by them and to the fact that they have no responsibility for the damage they have suffered, each of Mr Blomfield and Mr Patterson is entitled to have it made plain that my conclusion is that the allegations against them were false.  They should not have been made.  They should not have been pursued.

1. In the light of my examination of the evidence, and my conclusions about it, I see no alternative to the conclusion that the evidence given by Ms Dye in this Court about those matters was, in important and very many respects, knowingly false.

2. In order to make sense of the complicated way Ms Dye’s case was advanced it will be necessary to place the particular allegations against Mr Blomfield and Mr Patterson in the wider context of Ms Dye’s overall employment.  Those allegations were only made, in each relevant instance, after Ms Dye’s own work performance had been criticised (in Mr Blomfield’s case) and her employment had come to an end (in Mr Patterson’s case).  How those developments occurred will take some time to explain.  I am satisfied that the allegations which were made in each case were without any substance and, with respect to some matters, were completely fabricated.  If any of the alleged incidents occurred, they would have been reflected in quite different behaviour on Ms Dye’s part around the dates in question.  I will give two very simple examples as an illustration of something to be later explained in more detail.  I do not accept that Ms Dye would have accompanied Mr Patterson on a work trip to New Zealand in late June 2006 and dined with him alone as she did there on two evenings if, as she alleged, she believed him to have “raped” a friend of hers on the evening of 13 April 2006 and if he had sexually assaulted Ms Dye on 9 June 2006, assaulted her again on 13 June 2006 and again assaulted her on 16 June 2006, less than one week before the trip.  Secondly, I shall later explain that on 4 May 2007 Ms Dye invited Mr Patterson to her apartment on a Friday afternoon and asked him to bring a bottle of red wine with him which they shared together in the isolation and intimacy of her apartment when he arrived.  I do not accept that she would have done that if, as she alleged, he had again assaulted her at his home three weeks earlier on 13 April 2007.

3. These are, for the moment, only two examples of the importance of assessing the allegations of sexual harassment, with their accompanying allegations of criminal assault on the part of Mr Patterson, in an appropriate context.

4. The allegations against Mr Blomfield are factually less serious (in the sense that they do not allege criminal conduct) and the context is more complicated, but again a proper appreciation of the context, as well as an assessment of the allegations themselves, will yield only the conclusion that it was Ms Dye, and not Mr Blomfield, who was anxious that they should establish a personal and presumably sexual relationship.  It was Mr Blomfield, and not Ms Dye, who resisted and refrained.  It was Ms Dye’s disappointment with Mr Blomfield’s lack of attention to her, personally and professionally, which triggered events which culminated in an assessment by her manager, Mr Selvarajah, critical of her work performance.  This was the prelude to an extended absence on sick leave which provided the occasion for the attempted manipulation by Ms Dye of the circumstances in which she could return to work.  Those matters ultimately had no direct bearing upon her employment or its termination.  Termination of Ms Dye’s employment, when it occurred, was amongst other things for the reason that her position had become redundant.  It was also for the reason that she accepted that her employment would cease.

5. I am satisfied that there is no substance at all in any of the allegations made in the present proceedings that Mr Blomfield and Mr Patterson sexually harassed Ms Dye.  On the contrary they were each, until she for her own reasons chose to accuse them of sexual misconduct towards her, persons whom she regarded as mentors.  The fracturing of those relationships was, in each case, the result of Ms Dye’s own actions for which Mr Blomfield and Mr Patterson are each blameless.  No case of sexual harassment, of even a minor kind, has been made out in these proceedings. 

6. 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 EVIDENCE

   The nature and weight of different forms of evidence

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. A similar, but separate, category is various statements and written versions of events, made by Ms Dye herself, about which I shall say something more shortly.  A further category is the record of evidence given orally by Ms Dye in the Blomfield proceedings in the Supreme Court of NSW when Mr Blomfield sued News Limited over the articles on 16 and 17 April 2008.

13. All of this body of written evidence also needed to be assessed for its reliability and weight.  A statement made knowingly about a factual matter may seem to have greater or lesser reliability, and greater or lesser weight, if made without any appreciation that it will be used later, or vice versa.  It may be more reliable if deliberately, rather than casually, made.  It all depends on the circumstances.  It will assist an appreciation of the discussion which follows if I make some general points now.

14. In the case of contemporaneous records in the form of emails etc constituting ordinary business communications, I generally have little reservation about their reliability with one exception.  That exception concerns the conclusion to which I have been forced by the whole of the evidence in the proceedings that Ms Dye frequently misstated the factual position, even in contemporaneous communications with her business colleagues.  Otherwise, I have no reason to doubt the general reliability of the position which arises from the contemporaneous documents which constitute communications in the ordinary course of business.  Indeed those documents are a valuable record against which to test witnesses’ recollections and their later versions of events.

15. For the purpose of the present case Ms Dye’s assertions of fact may be divided into four broad categories:  assertions in emails and other contemporaneous communications within the bank; assertions in written versions of events designed to advance some request for redress, make some claim or support some complaint to an external body such as HREOC or the police; evidence given orally to the Supreme Court of NSW in the Blomfield proceedings; and evidence given orally in the present proceedings.  I shall say something generally about those categories in that order.

16. As the evidence unfolded, I developed reservations about factual assertions made by Ms Dye, even to her work colleagues.  I shall mention them in due course where they are relevant.  Ms Dye’s interaction with other people, and the evident tone of that interaction, is however a relevant context in which to assess the reliability of later assertions about her own conduct and that of others.  Ms Dye seems to have a view of her own personality, attributes and capacities which is often different from that of other people.  I found over the long course of the trial that her capacity for objective self-assessment is quite limited and that her preparedness to disregard the capacities and interests of others when it suits her to do so makes her an unreliable observer and reporter of events around her and those concerning herself.  That was apparent to me even in communications with her colleagues during Ms Dye’s employment with CommSec.

17. Ms Dye’s written statements made in support of some claims are highly unreliable for a number of reasons.  First, they suffer from the defect I have already mentioned.  Ms Dye seems either incapable of taking, or unwilling to take, adequate account of any position or interest other than her own.  Secondly, as I shall discuss in greater detail in relation to some particular events, Ms Dye’s written account of matters has, over the years, been progressively altered, re-recorded, edited, polished, embellished and even substantially changed as though it was a novel.  She has added events, omitted events and changed the dates on which events occurred in a bewildering fashion.  She has rewritten a version of some events on a number of occasions so that their very character and significance altered completely.  Things like that do not happen in the real world, or represent an honest recording of the real world.  I was driven in the end to suspect that the rewriting reflected altered objectives and gave effect to a changed focus.  I was also driven to suspect that, in that process, Ms Dye was fairly indifferent to the truth, provided she thought she could achieve the objective in mind.  Be all that as it may, whether or not my suspicion is valid, the way in which this written history has developed and changed makes it highly suspect.  Significant parts of it, I am satisfied, are simply false.

18. So far as Ms Dye’s evidence for the Supreme Court of NSW in the Blomfield proceedings is concerned, there is no reason for me to make specific findings about that evidence.  Its chief use in cross-examination was to challenge evidence given orally at the present trial and I shall refer to it where necessary in that context.

19. I will shortly deal in more detail with the credit of various witnesses but it is convenient at this point, having made observations about Ms Dye’s earlier out of court statements, to make some broad remarks about her oral evidence in order to complete the general picture about her evidence.  I found Ms Dye’s oral evidence at the trial to be highly unreliable.  I formed the clear view on many occasions that she was unwilling to give truthful evidence.  She was evasive and unwilling to make reasonable, sensible and obvious concessions.  She was frequently driven to a position where she was required, in order to defend some position she had chosen, to contradict evidence given before the Supreme Court of NSW in the Blomfield proceedings or evidence given earlier in the present proceedings, sometimes only a few pages earlier in the transcript.  I was forced to the conclusion that she would say whatever she thought suited her purposes at the time.  Where her evidence is contradicted by another witness I would not, without more, prefer Ms Dye’s evidence.  Where her evidence lacked corroboration I would not, on any matter vital to her case, regard it as sufficient.

20. It has been necessary to consider, and in many cases resolve, competing versions concerning particular events, conversations and exchanges.  It will become clear, when I discuss particular factual matters, when I have felt it necessary to refer to or resolve any contest or difference of recollection.  Inevitably, preferences for some evidence over other evidence (written and/or oral) has sometimes been necessary and has played a part in reaching a view about the factual position, but it would be impossible to provide a full discussion of every instance in which that has occurred.  The description of factual events and circumstances and their significance that is given later in this judgment, is the one which seems to me to be the best view arising from the evidence as a whole, as well as the evidence about particular matters.

    Credit

21. Judges are often counselled not to make unnecessary findings or observations adverse to the credit of witnesses and to bear in mind the desirability of allowing witnesses and parties to retain their dignity so far as that is possible.  I am also acutely aware of judicial reminders that it can be very difficult to make a reliable assessment of the credit of a witness based only on demeanour and that a judge’s actual ability to do so accurately may be very different from the judge’s belief in his or her own capacities.

22. It was, however, necessary in this case to make an assessment of the credit and reliability of some, but not all, of the witnesses.  Where the evidence is of little importance to an assessment of the factual position I will say nothing about the credit of a particular witness.  However, some findings about credit are, in the present case, unable to be avoided.

    Ms Dye’s Credit

23. In the present proceedings, an assessment of Ms Dye’s credit, and the reliability of her evidence was unavoidable, both with respect to a large number of individual assertions and overall.  I must make that assessment doing the best that I can with the evidence admitted at the trial and my assessment of Ms Dye in the witness box.

24. Ms Dye impressed me very unfavourably as a witness.  It will be necessary in due course to give explanations for findings about particular issues.  Those explanations will refer, in part, to the inconsistencies and contradictions within Ms Dye’s evidence in the present case, between that evidence and earlier statements made by her about the same issues, and between her version of various events and that supplied by other witnesses or recorded by contemporaneous documents.  However, some general comments may also be made.

25. There were very many instances where Ms Dye’s evidence in the present proceedings was unable to be reconciled with earlier statements made by her about the same matters.  Over a period of time from early 2007 to early 2009 Ms Dye advanced a number of written allegations for various purposes about matters which were also dealt with in her oral evidence at the trial.  The progressive recasting of the allegations in these various documents cannot be satisfactorily explained by the progressive recollection and recording of actual events.  The embellishments, alterations and other additions do not permit so charitable an explanation.  Nor surprisingly, Ms Dye was invited in her evidence in the present case to attempt some reconciliation or explanation of the changes in her stated recollections.  Her attempt to provide it was largely unsuccessful.  In very many instances, her version of events in earlier documents (regrettably – “self-serving” is often the only appropriate description) was decisively contradicted by contemporaneous records.  The issues about which this happened ranged from the mundane to the more important.  Sometimes the contradiction came from Ms Dye’s own words which were recorded in emails sent by her to workmates, colleagues or superiors. 

26. The evidence which Ms Dye gave directly in the proceedings was equally unreliable.  Very early in the case, during Ms Dye’s evidence in chief, before she had been challenged in cross-examination or any contrary evidence had been given, I noted a disturbing feature about her evidence and its reliability.  On a number of occasions Ms Dye gave evidence about matters which was thereafter (sometimes shortly thereafter) contradicted by the terms and content of contemporaneous documents referring to those matters.  Some of those documents had been prepared by her, some by others.  The difference between the impression left by Ms Dye’s oral evidence and that emerging from a balanced and neutral evaluation of the documents was occasionally striking.  It was not necessary then for me to attempt any evaluation of the extent to which Ms Dye attempted to give her evidence honestly, although it has been since.  At those initial stages it seemed possible that Ms Dye’s oral account was affected by the passage of time, an inability to distance herself emotionally from the events (each of which would be natural enough) or by an unwillingness to put the conversations into a sensible and proper perspective.  None would necessarily suggest dishonestly.  Whatever the reason might have been for the discrepancies between her oral evidence and the contemporaneous record I found Ms Dye’s oral evidence, even at that very early stage of the proceedings, to be a much less sure guide than the available written record.  That is by no means unusual in litigation and the observation might not have led to a conclusion that she failed to tell the truth.  It was unnecessary for me to attempt an evaluation of that issue at that early stage, but my initial doubts became a conviction in due course that Ms Dye’s evidence was not only unreliable as a factual account, but actively dishonest.  The signs of that unreliability were there from the outset, as soon as comparison with contemporaneous records was available.

27. Frequently, a version of events given in evidence in chief was shown to be importantly incomplete; sometimes quite misleadingly so.  When challenged in cross-examination Ms Dye responded, reasonably enough on one view, that she had confined herself to the questions asked by her counsel.  That attempt to deflect the issue, however, did nothing to justify the approach she took in cross-examination.  I frequently formed the view that Ms Dye was not endeavouring to give evidence honestly and to the best of her recollection and ability. 

28. At times it was impossible to know whether Ms Dye’s answers concealed an inability to recall what had actually happened, whether her answers were knowingly false or whether Ms Dye was simply indifferent to where the truth lay about a particular fact, believing that to be less important than the overall pursuit of her perceived grievances.  On other occasions, when faced with insurmountable contradictions in her evidence, Ms Dye often found refuge in a professed lack of recollection.  That may not have been an escape of convenience; in many cases it may have been true, suggesting that her earlier evidence was a fabrication or, more charitably, a reconstruction.  It is probable that each of the above explanations was at work in Ms Dye’s evidence.  Whatever the true explanation in individual instances, her evidence on very many issues I found to be quite unsafe as a foundation upon which to make factual findings. 

1. From the beginning of Ms Dye’s cross-examination I also formed the clear impression that she was unwilling to co-operate in a reasonable fashion with counsel for the respondents and, worse, was unwilling to give candid evidence, answer questions honestly and directly or make reasonable concessions.  Questions which could and should have been answered with a word or a short phrase became semantic debates.  Those exchanges were unnecessary.  Eventually, the only explanation for this approach was that Ms Dye was simply not prepared to tell the truth in cross-examination and that she had not done so in her evidence in chief.

2. Ms Dye’s desire to embellish her accounts accompanied her oral evidence.  Her answers were frequently non-responsive.  On many occasions that appeared to be because she was evading the proposition to which she was asked to respond.  However, frequently she added quite unnecessarily to her answers some additional assertion or allegation.  Almost invariably these seemed designed to cast a slur on one or more of her former colleagues.  It was impossible in the long run not to see these asides as vindictive.  Unfortunately, they reflected much more adversely on their maker than on their intended objects for criticism.

3. By the end of the case (and in large part by the end of Ms Dye’s evidence) the doubts which I had formed about the reliability of Ms Dye’s evidence – indeed, my conviction that it was unreliable where not adequately corroborated – were such that the consequences for the causes of action were very significant. The position has not changed with further reflection. These reasons for judgment will explain why particular elements of each of Ms Dye’s causes of action are not made out on the evidence, with the result that none of them succeed. However, at a more general level, my conclusions about the reliability of Ms Dye’s evidence are such that in every case where she bore the burden of proof (of a matter, an element in a cause of action, or a cause of action) on the balance of probabilities (s 142 of the Evidence Act), she did not discharge the onus of proof which lay on her. In no case was I persuaded that it was more probable than not that the matter, element or cause had happened or was established. The fact that Ms Dye cannot discharge the burden of proof which lies on her is a reason why her case cannot succeed, but the position is ultimately much worse than that for her, as will emerge as I descend further into the detail of her allegations.

   The applicant’s mother – Mrs Vicki Dye

4. I regret to say that I also found the evidence of Ms Dye’s mother, Mrs Vicki Dye, to be unreliable and generally lacking in credit.  There were some matters to which she deposed which I am satisfied were quite false. 

5. Over a period of some years Mrs Dye has become associated very closely with her daughter’s position and with the various versions of events as Ms Dye developed and advanced them, often checking and proof reading the various written versions of events, which changed over time.  When she gave her evidence in the proceedings Mrs Dye at times seemed to have an apparently uncanny ability to recollect matters of very great detail which she alleged had been conveyed to her by her daughter at or about the time of many of the events in question in the proceedings.  When Mrs Dye was required to rely upon her own recollection of matters her evidence became vague and indecisive.  This was a very marked contrast from her supposed ability to recall matters which she said were conveyed to her orally by her daughter.  Those matters of supposedly detailed recollection, in my view, are the product of very close familiarity and association with, and study of, the written allegations made from time to time.  That circumstance would, apart from anything else, render Mrs Dye’s evidence about those matters of relatively little weight.  Regrettably, that was not the only difficulty.

6. Progressively during Mrs Dye’s evidence and as her cross examination commenced and continued I first formed the view that Mrs Dye could offer no independent evidence that was not tainted by her association with the development of her daughter’s allegations. Then I was forced to the view that Mrs Dye was unwilling to tell the truth and that she had completely aligned herself with her daughter.  That association extended to giving false evidence in an attempt to support her daughter’s case in the present proceedings.

7. There are some specific matters in respect of which, in my view, Mrs Dye gave deliberately untruthful evidence in order to support her daughter’s version of events, with which I shall deal in due course.  I became satisfied that Mrs Dye was prepared to do anything that she thought would assist her daughter’s case.  I do not regard her as an honest witness.  I am not prepared to treat her evidence as providing any corroboration for Ms Dye’s allegations.

   Respondents’ witnesses

8. Some of the conclusions I am about to state, or refer to, anticipate matters which have not yet been discussed and may appear out of place at this stage.  However, it is convenient to mention them now, in this present context.  A further explanation will emerge.  Allowing for imperfect recollection, and the usual inconsistencies which sometimes arise as a result, I formed the view that the witnesses called by the respondents were doing their best to give truthful evidence to the best of their recollection.  Universally, they were willing to give Ms Dye credit for her undoubted diligence in some areas of her work.  Some had begun on very friendly terms with her.  Each seemed prepared to put bitterness aside and give Ms Dye credit when it was due, even though some have seen their earlier friendship spurned by her and now find themselves attacked by her in immoderate, and sometimes quite vicious, ways.

9. Ms Bradbury, Ms Philippa Maiden, Ms Karen James, Ms Felicity Johnson and Ms Tina Puru I found to be straightforward and honest witnesses, prepared to be open and reasonable in their evidence.  I accept the substance of their evidence without any qualifications.  I take the same view of the evidence of Mr Alan Furlong.  I have no doubt that Ms Dye received every consideration from the Human Resources (“HR”) department of the bank as she progressively advanced her various claims and that Mr Furlong and others dealt with her claims quite independently of any motivation to protect those whom she accused.

10. Mr Bernard Tanner was regarded by Ms Dye as a friend and mentor.  I am happy to accept that he was.  He was an evidently honest and dispassionate witness.  He gave credit to Ms Dye for her work but refused to overstate her contribution.  His evidence did not support her case.

11. Mr Blomfield I accept as a witness of truth.  He was clearly regarded with respect and affection by those who worked for him and I have no reason to doubt that was merited.  He had, before the events in question, obviously enjoyed a highly successful career at a young age after starting from less auspicious beginnings.  I found him to be straightforward and relatively self-deprecating.  I suspect he feels bitter about what has happened and he may be entitled to that reaction.  His efforts to deal with Ms Dye, with which I shall later deal, may be open to a charge of naivety, but that probably does insufficient justice to his intentions which, I am satisfied, were honourable.  I am satisfied he was prepared to give Ms Dye an opportunity professionally and that she abused it.  I am quite satisfied he did not sexually harass Ms Dye, nor that any attention he gave her was unwelcome.  The contrary was true.

12. I accept the description of counsel for the respondents of Mr Selvarajah as a dignified witness.  I accept his evidence without reservation.  That also has profound consequences for Ms Dye’s case in relation to a number of matters of considerable importance in the case.  I am satisfied that Ms Dye’s work, and her approach to her work, was not satisfactory in many respects after she commenced reporting to Mr Selvarajah.  Mr Selvarajah was not the only person to say or think that but it was he who came under the most sustained and vitriolic attack (both during Ms Dye’s employment and in the present proceedings) for having done so.  I am satisfied Mr Selvarajah was not doing Mr Blomfield’s bidding, as alleged by Ms Dye, when Ms Dye commenced to report to him, when Mr Selvarajah found Ms Dye’s work unsatisfactory, when he assessed Ms Dye’s work performance formally as “needs improvement”, when he decided later that her position was not required or when he recommended that it be made redundant.  I am satisfied that Ms Dye was treated with scrupulous fairness by Mr Selvarajah and, indeed, generally.

13. Mr Patterson was a good friend to Ms Dye.  He was her constant, and probably uncritical, supporter.  The most heinous accusations are the ones which have been made against him.  He seems hurt and perhaps bewildered but, so far as I could judge, not bitter.  That is a great credit to him.  He freely confessed difficulty in placing particular events in their correct chronological sequence.  He also had some difficulty remembering the detail of particular events.  I am satisfied that was not the result of any reluctance to give honest evidence.  He was placed in the most invidious position of not being aware, until years later, what Ms Dye would ultimately say about him in her progressively developed version of her accusations.  I accept his denial of any wrongdoing.  I am satisfied that the accusations against him were invented after Ms Dye decided to turn against him, believing his support to be of no further use to her.

14. Ms Emma Okano was also a dignified witness whose evidence I accept without reservation.  She has had to suffer the misfortune and indignity of having her personal, and sometimes intensely private, circumstances paraded by Ms Dye in her various versions of events, including at the public conduct of this trial.  In order to deal adequately with the present proceedings, it is not possible to protect Ms Okano’s identity or to refrain from dealing, again publicly, with her personal circumstances.  I regret that is so.  Ms Okano is a Japanese citizen and now resides in Japan.  She could not be forced to come to Australia to give evidence and was not obliged to give evidence at all.  After some initial hesitation she agreed to give evidence by video link.  Her evidence has been of considerable assistance to me as I struggled to understand, and evaluate, the foundation for the various claims made by Ms Dye in the proceedings, and earlier.

    THE COURSE OF MS DYE’S EMPLOYMENT

15. In this part of the judgment I propose to track through Ms Dye’s employment with CommSec and identify some features of her working and personal relationships.  There are specific events to be mentioned, to which it will be necessary to return, but it will be more useful to discuss the detail of those matters when it can be more readily appreciated where they fit in the overall context.

16. In the survey of Ms Dye’s employment which follows some things may stand out.  For example, any criticism of her work, or any perceived threat to her job security, risked turning into a crisis for Ms Dye.  On the other hand, the allegations of very grave (sometimes criminal) conduct now made by her were not reflected by any disturbance to daily routine, personal or professional.  That is only one of the many indicia that those allegations were, and are, baseless.  Another aspect is that Ms Dye’s opinion of herself, her work and her contribution appears often to have exceeded that of the people around her, sometimes by a large margin.  Yet another is that a consistent criticism of Ms Dye which emerged from the evidence is that she was, to some people at least, high handed and dismissive.  The contemporaneous records and the evidence of various witnesses (even the evidence of Ms Dye herself) support the view that there was an element of tension in Ms Dye’s working relationships with some of her colleagues.  The material available to me suggests that not the least of the causes of this tension was the difficulty Ms Dye had in forming and then maintaining cordial and mutually respectful interpersonal relations with her colleagues.  Ms Dye appears to have been unable to see this aspect of her own personality, complaining when people (often other women) seemed cool to her that it was because she did not fit into some workplace culture that others wished to impose on her. 

17. In most instances, it is not necessary for me to attempt any independent judgment of Ms Dye’s work performance.  It is sufficient to record what her colleagues and (more importantly) her superiors thought of it at the relevant time.  The present proceedings are not concerned with whether Ms Dye deserved greater recognition, although I have no reason to think that she did.  The proceedings are not concerned with whether Ms Dye’s supervisors were correct to question her performance, although I have no reason to think they were not.  In fact, I have the impression that Ms Dye was treated very charitably for a long time and would have been shown the door in many organisations well within the three years that she remained employed by CommSec.

18. In 2005 CBA had a pyramid-like, seven tier management structure, with the Chief Executive Officer (“CEO”) at its apex.  The structure applied also in CommSec.  Below the CEO the management levels were:

    Level 6 – Group Executive
    Level 5 – Executive General Manager
    Level 4 – General Manager
    Level 3 – Executive Manager
    Levels 2 and 1 – other specifically named positions

19. Above levels 1 and 2, a different contract of employment was used, which was known as an executive manager contract.  The evidence from the respondents’ witnesses was consistently to the effect that they understood that appointment at, or promotion to, level 3 required such a contract.  Ms Dye was never engaged on, or offered, such a contract.

20. Ms Dye’s pleaded case and her evidence suggested that she was told at various points that she either would be promoted to level 3, or was regarded already as at level 3.  None of those assertions was made good on the evidence, which permitted only one conclusion about the level at which Ms Dye was engaged.  She was engaged at level 2 and remained thereafter at level 2 for the relatively short period of her employment.  She was never appointed to a position at level 3, nor acted in such a position, nor was regarded as working in such a position or at such a level.

21. Ms Bradbury, Mr Patterson, Ms Kelly Bayer-Rosmarin and Mr Selvarajah were the only managers which Ms Dye had during her employment with CommSec.  I reject any suggestion that Ms Dye reported (within CBA’s and CommSec’s use of that concept) to persons other than those I have mentioned.  The fact that she was, from time to time, with the agreement and co-operation of her manager, asked to provide assistance to others does not change that position.  Furthermore, it is quite clear from Ms Dye’s contemporaneous communications that she understood these things perfectly well.  Evidence that she gave in the proceedings to a contrary effect was, in my view, given to avoid inconvenience to her case. 

    CommSec as employer

22. Some brief discussion of the position of CommSec as employer is necessary.  Ms Dye commenced employment with CommSec on Monday 7 March 2005.  Mr Patterson and Mr Blomfield were employed by CBA.  Counsel for Ms Dye at various times suggested that her employment by CommSec was a sham.  The suggestion was to the effect that it was a ruse or device intended to quarantine CBA from responsibility for, or liability to, persons who would otherwise be its own employees.  The suggestion was accompanied by submissions to the effect that a judge of this Court had so declared.  None of these suggestions or submissions had any substance.

23. In the first place, the proceedings in this Court were commenced upon the pleaded foundation that CommSec was Ms Dye’s employer and was liable for the actions of Mr Blomfield, Mr Patterson and others towards her as its agents.  Despite repeated amendments to the pleadings, that foundation for the proceedings against CommSec was maintained to the end of the trial.  The suggestion and submission to which I have referred were therefore contradicted by the pleaded case and must be rejected for that reason alone.  They are, in any event, incorrect as a matter of both fact and legal analysis.

24. CommSec, which is a wholly owned subsidiary of CBA, provided stockbroking services to customers of the bank.  During 2002, CBA decided to place conduct of the business of its Premium Financial Services division (“PFS”) in the hands of CommSec.  Mr Blomfield joined CommSec in April 1998 as head of Client Service and Internet.  He was, from October 1999, the Chief Manager of CommSec’s private advisory business (a stockbroking business), from May 2000, Deputy General Manager of CommSec and from January 2002 its General Manager.  He was then 31 years old.  In 2002, he also took over responsibility for the PFS business when it was allocated to CommSec control by CBA.  In June 2006, as I shall in due course discuss, Mr Blomfield was appointed an Executive General Manager with CBA, in charge of a division of the bank known as Local Business Banking (“LBB”).

25. When CommSec took over the conduct of PFS in 2002 it offered contracts of employment to a number of employees of CBA.  The contract of employment later accepted by Ms Dye was a contract of this character.  Employees of CommSec engaged in this way were to be employed on duties in a business carried on by CommSec which was, at the same time, conducted as part of the overall business carried on by the CBA group as a whole and under the ultimate direction of CBA.  In Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176, I discussed (at [75]–[92]) some aspects of arrangements of this kind within a group of companies, or between or amongst associated companies. It is sufficient to say, for the purpose of the present case, that any allegation that such an arrangement is a sham is a contention which may not rest on assumption; it must be proved. No attempt was made to prove the contention in the present case and, as I have said, Ms Dye’s own pleaded case left no room for it.

26. The suggestion that CommSec was not Ms Dye’s true employer was based on judgments of Merkel J, which predated the commencement of Ms Dye’s employment.  In Finance Sector Union of Australia v Commonwealth Bank of Australia [2003] FCA 435, Merkel J dealt with applications for interlocutory relief. In those proceedings, the Finance Sector Union of Australia (“FSU”) had commenced proceedings under the Trade Practices Act 1974 (Cth) (“TP Act”) and the Workplace Relations Act 1996 (Cth) (“WR Act”) trying to stop the new employment arrangements. The judgment dealt with an application for an interlocutory injunction which would have required CBA, and not CommSec, to be the employer of persons thereafter engaged in the PFS business. For a number of reasons the application for an interlocutory injunction was refused. There was no finding that contracts of employment between CommSec and individual employees were, or would be, a sham or legally ineffective. The contrary is the case (see e.g. at [14]–[15]).

27. In Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158, at a final trial, Merkel J concluded that CBA, in establishing CommSec as the employer of employees in the PFS business unit, employed unlawful means to achieve an unlawful end. The unlawful means was concealment of the decision from the FSU until after it had been implemented. The unlawful end was the alteration of the position of 272 employees to their prejudice because they were entitled to the benefit of certain industrial instruments.

28. Those findings had no legal or practical application to employees who were recruited directly into CommSec.  They had no application to Ms Dye.  They have no legal significance for the present proceedings.  Merkel J did not rule that CommSec could not be, or was not, the legal employer of persons like Ms Dye, or Ms Dye herself.  The contrary is the case.  At [127] to [141] Merkel J rejected an argument that CommSec was not an employer in its own right and was only an agent for CBA.  His Honour said (at [137]):

    137… although CommSec employees may be acting as agents for CBA in providing the PFS business unit’s services, the services are being provided by CommSec’s employees.  In those circumstances, absent an allegation of a sham, there are insurmountable obstacles confronting any argument that CommSec is not the employer of the employees concerned.

    and (at [139]):

    139… it is clear that the common intention, viewed objectively, of the contracting parties … is that CommSec was to be the employer.

1. In my view, neither imputation (c) nor (d) was republished in Schedule B.  However, as will appear hereunder, despite my resistance to the proposition that imputation (d) was carried by Schedule A, or that imputation (c) and (d) were republished in Schedule B, nothing ultimately turns on that as no action based on the first matter complained of can succeed in any event.

2. As to the second matter complained of (if it was available for consideration) I am not satisfied that imputation (a) was carried.  The fact that Ms Dye’s work was declared to be unsatisfactory early in 2007 (Schedule C) does not, in my view, carry the more general and stronger imputation that she was incompetent.  In Schedule C the mention of unsatisfactory work is raised as a matter of timing.  A mere declaration that work is unsatisfactory at a particular point in time neither eliminates the prospect that work performance might be improved, nor operates as a general declaration of incompetence.  Schedule D makes no mention at all of unsatisfactory work performance.  I am prepared to accept that imputation (b) is carried.  Schedule D contains nothing which would carry imputation (c).  Schedule C (if proved) might provide support for imputation (c).  For present purposes, I am prepared to assume that is so.  However, as with the first matter complained of, none of the asserted imputations, even if all carried and all available as a foundation for the defamation proceedings, would provide a reason to grant any relief.

3. For ease of discussion, notwithstanding my findings that certain imputations were not carried, and my conclusion that the second matter complained of was not available to support the action in defamation, I shall assume that all imputations, as alleged, were carried.  I shall do that because it is clear that the cause of action in defamation cannot succeed even if that was so.  There are various reasons for that, each of them fatal to Ms Dye’s position.

4. The first reason is that each of the asserted imputations was, in substance, true.  The second reason is that each of the statements upon which Ms Dye sued was protected by common law qualified privilege.  Within the scope of operation of that privilege, each of the statements was a legitimate reply to attack.  The third reason is that the defence of common law qualified privilege was not defeated by malice.  I am satisfied, on the contrary, that the statements were not maliciously made, in contradistinction to Ms Dye’s own allegations.  Elaboration of some of those propositions follows.

   Truth

5. The imputations alleged were, if carried, in fact true.  There is no need here to repeat the factual findings already made.  This defence is clearly established.  It defeats the action in defamation.

   Privileged occasion

6. Because it was not proved that the statements set out in Schedule C were actually made orally by Ms Chapman to an identified person it is not necessary to give further attention to Schedule C.  Schedule B contains an alleged republication of statements made in Schedules A and D.  It is to those statements that attention must first be given.

7. Schedule A was published to General Managers, Executive General Managers and Group Executives as at 16 April 2008.  It followed a rapid escalation in publicity where The Daily Telegraph had published sensational, and highly scandalous, allegations against Mr Blomfield and Mr Patterson.  The allegations were of a character that necessarily damaged their reputations and professional standing.  The allegations were published in circumstances where each had left the bank, but not for any reason connected with the allegations, and in circumstances which might have been far from obvious to readers of The Daily Telegraph, or even employees of CBA and its subsidiaries.  The bank was directly involved in the allegations made.  Mr Blomfield and Mr Patterson were each identified as senior executives of the bank.  It was inevitable that the allegations, given their lurid nature, would draw attention to the bank as well as the two men.  In addition, it was inevitable that sensational allegations of this character, splashed across the pages of a tabloid newspaper, would excite interest, attention and speculation amongst employees of CBA, its subsidiaries and other organisations, from top to bottom.

8. In my view, CBA had a clear interest in publishing to its employees and those of its subsidiaries, and to the media, the conclusions reached in the investigations which had been conducted if it wished to do so.  It was entitled to state a position about the views formed, so far as Ms Dye had revealed her accusations and thereby provided an opportunity for investigation.  It was entitled to say that the conclusion had been reached that the allegations were unfounded, even if that suggested they were false.  It was entitled to point out that the allegations had been made after Ms Dye’s work performance had come under question and been found unsatisfactory.  It was entitled to declare that it would support Mr Blomfield and Mr Patterson in any attempt to clear their names or restore their reputations.  It was entitled to say that it was “extremely disappointed that it appears that Ms Dye has chosen to fight this issue in the media”, even if that suggested that she (whether directly or indirectly) had “wrongly leaked information to the media”.  CBA had a clear interest in its own right in making statements of that kind to its own employees, to employees of its subsidiaries, to other organisations, to the media and to the general public.  It also had a clear interest, if it wished to do so, to publicly indicate its support for Mr Blomfield and Mr Patterson.  The statements made against them by Ms Dye are fairly described as vicious.  The inevitable damage to them personally and professionally was enormous.  There is adequate evidence of it in the present case.  It seems to me from the evidence in the present case that the damage was either calculated or Ms Dye was indifferent to the harm she caused.

9. Those to whom CBA and Ms Chapman, communicated the matters in Schedule A had, in my view, a corresponding and clear interest in receiving a statement about CBA’s response to the published allegations.  CBA did not fire the first shot in this dirty war, that was done by Ms Dye and her advisors.  The response made by CBA, in sharp contradistinction to the allegations made by Ms Dye, was moderate, reasonable and, in my view, beyond sensible criticism. 

10. I see no basis for any suggestion of malice on the part of CBA or Ms Chapman so far as Schedule A is concerned, although there is ample evidence of malice on the part of Ms Dye towards Mr Blomfield, Mr Patterson and the bank.

11. In my view, the defence of Schedule A as privileged at common law is overwhelmingly established.

12. My conclusions about Schedule D are very similar.  At the time of this statement by Ms Chapman to senior levels of CBA, the publicity and sensation had not yet reached their zenith and, correspondingly, the statements made in Schedule D are less developed than in Schedule A.  There is no reference to Ms Dye’s work performance.  There is a restrained statement that the allegations were viewed by CBA as unfounded, following investigation, and that it was disappointing the matter was being ventilated in the media.

13. At this stage, allegations against Mr Patterson were a very pale reflection of what was to be published within a matter of days.  It is also true that there had been only limited investigation (or opportunity for investigation) of allegations against him.  Nevertheless, all the conclusions stated earlier about Schedule A apply.  Schedule D, in my view, was privileged at common law.  There was no malice in Ms Chapman’s email of 14 April 2008.  The defence is established.

14. Insofar as Schedule B might represent a republication of the privileged communications in Schedules A and D, it also is beyond attack.

    Reply to attack

15. Apart from the essential truth of its contents and the fact that it was published on an occasion protected generally by common law privilege, Schedule A was also privileged at common law for reasons which include the fact that it was a reply to an attack which extended to the bank and included those whose interests the bank was entitled to protect also.

16. Publication of Ms Dye’s allegations against Mr Blomfield and Mr Patterson, and the published assertion of their connection with CBA as senior executives, enlivened a right of reply to those likely to have read the material published.  The reply could lawfully be vigorous although, in my view, in this case it was not.  In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Starke J stated the principle in these terms (at 515):

    A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion.

17. In the present case, CBA had an interest which entitled it to protect the reputation of its senior executives as well as its own (see e.g. Penton v Calwell (1945) 70 CLR 219 per Latham CJ and Williams J at 243).

18. The occasion for a defence of qualified privilege of common law was identified by the NSW Court of Appeal in Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; (2011) 279 ALR 183 at [106]:

    The defence of qualified privilege at common law is available in respect of the publication of statements which are false in fact, and injurious to the character of another if “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned”: Toogood v Spyring [1834] 149 ER 1044 (at 1050–10510) per Parke B.

19. CBA was clearly entitled, in my view, to reply privately and publicly to the newspapers which had published Ms Dye’s allegations, to the general public which might have read those published allegations, and to its own staff and others in the finance industry who might have become aware of those allegations.  It was entitled to do so in its own interests and by way of a statement of support for Mr Patterson and Mr Blomfield whose conduct and reputations had been impugned.

20. It may not be said that CBA or Ms Chapman replied without responsible enquiry.  The reply was in responsible and moderate terms.  The response was, debating points aside, true.  It has been completely vindicated by the evidence in the present proceedings. 

    Malice

21. Ms Dye has fallen so far short of establishing malice, a matter about which she bears the onus, that it is scarcely necessary to discuss that question at all.  The observations of Gaudron, McHugh and Gummow JJ in Roberts v Bass (2002) 212 CLR 1 at [76] state the relevant legal principles. The case about malice rose no higher than assertions, not based on the evidence, that some statements made by Ms Chapman were not true. Finally this accusation came to be focussed, as it did in the case of statements made by Mr Norris, upon the proposition that CBA had not (and nor had Ms Chapman or Mr Norris in particular) investigated, or adequately or promptly investigated (as it claimed) Ms Dye’s allegations. The submission cannot survive the observations in Roberts v Bass at [87] and at [96]–[99]. Nor can it survive the following statement at [104]:

    104Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey, Jordan CJ said:

    “It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla: Oldfield v Keogh. Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether.”

    (Footnotes omitted)

    DAMAGES

22. I have already, when discussing particular causes of action, indicated where necessary why no damages would be available to Ms Dye, apart altogether from the fact that the necessary factual and legal elements of her chosen causes of action were not in any instance made out.  Failure to do so means that no occasion arises to consider damages.  In the case of some claims (apart from sexual harassment), any claim for damages would fail in any event because Ms Dye did not, and could not, make the necessary causal connection between even her pleaded allegations and responsibility on the part of the respondents for loss or damage.

23. Nevertheless, I shall indicate again, at least in a summary way, why no occasion at all arises to even enter the territory of assessing damage or compensation.

24. The first reason is a general one of principle.  There is no basis upon which such a discussion could responsibly commence, given the factual findings I have made.  The exercise would be not only speculative; it would require speculation, and choices amongst speculative possibilities, for which there is no support in the evidence as I have assessed it.

25. I will, nevertheless, attempt some discussion of how, in principle, the question of damages under particular causes of action would need to be approached, although the discussion is, in the circumstances, academic.  It is convenient, in this respect, to make a distinction amongst damages for four different reasons:  compensation for sexual harassment, damages or compensation for injury of some sort; economic loss; and damages for loss of reputation.

    Compensation for sexual harassment

26. In her claim to HREOC, before she sought to rely upon actions for defamation, injurious falsehood, breach of contract and various actions for misleading or deceptive conduct, Ms Dye’s claim was quantified, for sexual harassment and sex discrimination alone, at $1,125,000.  Had Ms Dye made out a case that she had been sexually harassed then it would have been necessary to assess an appropriate level of compensation as a result.  That level of compensation would necessarily have depended upon the nature and extent of the sexual harassment proved.  It is not possible to give further consideration to this particular aspect, in the light of my earlier findings that no aspect of this cause of action, nor of sex discrimination, has been established, beyond pointing out again that CommSec could not have been held vicariously liable for the bulk of the conduct asserted, if at all.  Damages would, at best, have been a fraction of any amount in contemplation.

    Damages or compensation for injury

27. At the heart of Ms Dye’s case for compensation for sexual harassment, and imbedded in it with respect to other causes of action, was the proposition that she had been psychologically damaged by treatment to which she had been subjected for which, in the Federal Court proceedings, one or more of the respondents to these proceedings was liable.  The case for compensation or damages in this area depended entirely upon the evidence from Ms Dye’s treating practitioners.  It could not survive the findings made to the effect that none of the respondents in the Federal Court proceedings bear any liability towards Ms Dye for sexual harassment or any other form of adverse treatment.  In any event, the evidence presented on her behalf conveys a very different picture from that asserted on her behalf.  It would provide an unsound foundation for the award of damages.

28. During 2006, if she required medical attention, Ms Dye generally saw a doctor in the Observatory Tower Medical Centre in Kent Street, Sydney.  Usually it was Dr Grewal.  At one point she sought assistance at the St Vincent’s Hospital when she cut her head after fainting at work.  Late in 2006, in response to her developing anxiety, Dr Grewal referred Ms Dye to Dr Parmegiani, a psychiatrist.  Ms Dye did not see Dr Parmegiani at that stage.  However Ms Dye did go to see Dr Parmegiani after Mr Mason’s fair treatment review had been determined unfavourably to her.  She first saw Dr Parmegiani on 11 April 2007.  She saw him on a number of occasions between then and the production of his first report on 22 May 2007.  Dr Parmegiani became Ms Dye’s treating psychiatrist.  He was not an independent expert who examined her only for the purpose of the present proceedings.  Dr Parmegiani proceeded by accepting what Ms Dye told him was true.  He had no occasion, and no means, to attempt to verify her statements independently.  That is not a criticism of him but it means that Dr Parmegiani’s assessment of Ms Dye is inextricably linked with the version of events which she gave.  If that version of events is falsified any opinion which Dr Parmegiani offered must be adjusted as a result.  In the present case, there was no professional opinion offered by Dr Parmegiani which remained relevant.  The foundation for Dr Parmegiani’s opinions was removed.  Nevertheless some things emerged from the history which Dr Parmegiani took which are of significance for the present proceedings.  Particularly is that so where the history taken by Dr Parmegiani was inconsistent with the version of events given by Ms Dye in the present proceedings. 

29. Dr Parmegiani recorded in his first report dated 22 May 2007 that Ms Dye stated to him, that after the incident with Mr Patterson which resulted in his apology on 30 June 2006, she developed a “close friendship” with Mr Blomfield.  At this time Ms Dye described Mr Blomfield as being a mentor.  Dr Parmegiani recorded what he was told by Ms Dye about Mr Blomfield as follows:

    Ms Dye stated she subsequently developed a close friendship with the above-mentioned mentor (Michael), who however later signalled his own interests in establishing a personal relationship with Ms Dye.  After further discussion, the matter appeared to be resolved satisfactorily (by a mutual decision not to pursue a personal relationship), and Ms Dye spoke to Michael and obtained a position in the newly formed business unit headed by Michael, where she began working in November 2006.

    Having started to work in the business unit however, Ms Dye felt increasingly ignored or ostracised by Michael, leading to further discussion/clarification between them.  At this point she was instructed to report to a different manager (Arnie), and was given the task of performing a complex restructuring process, which she carried out in early 2007, working very long hours, and receiving very limited assistance from her superiors.

    In February 2007 she was approached by her boss Arnie, allegedly to discuss some shortcomings in her performance, and his concerns that she “did not fit in with the specific culture of the business unit”.  He also stated to her that she had already given her one formal warning about he [sic] behaviour (which she denied had previously happened), and foreshadowed the possibility of her being placed on a performance management programme.

    Having failed to further clarify her position and the complaints with Michael, and suffering from overwhelming symptoms of anxiety and distress, Ms Dye went on stress leave approximately five weeks before consulting with me.

30. There are aspects of this account which were unreliable but that is not immediately to the point.  Most important, for present purposes, is the fact that there was no allegation that Ms Dye was sexually harassed by Mr Blomfield.  Ms Dye’s stated distress was due to the fact that she did not receive enough attention from Mr Blomfield after she began working in LBB (i.e. well after both 15 June and 8 August 2006) and due to the fact that she was anxious and distressed by her treatment from Mr Selvarajah.  Dr Parmegiani said in this report of 22 May 2007:

    Over the past five weeks I have been able to detect a marked improvement in Ms Dye’s symptoms, which I now consider to have fully resolved.

    With respect to prognosis I would consider this to be favourable, and I believe that she is now able to return to her pre-injury duties.  I do however strongly recommend that prior to resumption of her duties all efforts should be made to resolve the interpersonal issues between Ms Dye and her managers that have resulted in the emergence of her recent symptoms.  Failure to do so may strongly encourage the recurrence of such symptoms, even in the presence of ongoing treatment in the form of antidepressant medications and counselling/psychotherapy.

1. There was no mention in this report of the fact that the circumstances had been reviewed by Mr Mason and Ms Dye’s position had not been vindicated.  Notwithstanding Dr Parmegiani’s diagnosis that Ms Dye’s symptoms had fully resolved by 22 May 2007, Ms Dye did not return to work but organised ongoing medical certificates from Dr Grewal until her entitlement to salary was completely exhausted. 

2. A further significance of Dr Parmegiani’s report of 22 May 2007, and the notes which he took, is that no complaint of any kind was made to him about the conduct of Mr Patterson.  There was no allegation of sexual harassment by Mr Patterson, much less of sexual assault.  Astonishingly, if Ms Dye’s complaints in the present proceedings had been true, there was no mention of the supposed assault by Mr Patterson on 13 April 2007, a date which fell between Ms Dye’s first and second appointments with Dr Parmegiani.  Ms Dye told Dr Parmegiani on 11 April 2007 that she and Mr Patterson had been friends before the incident in New Zealand.  She said that after the settlement on 30 June 2006 they started to become friends again.  That is inconsistent with Ms Dye’s suggestion in the present proceedings that Mr Patterson was sleazy to her the whole time she knew him and inconsistent with what was said in the April 2008 published allegations. 

3. Dr Parmegiani recorded that Ms Dye advised him that after 8 August 2006, when according to Ms Dye she and Mr Blomfield had both decided not to get involved with each other, she went into decline.  That is consistent with Ms Dye being upset that Mr Blomfield had rejected her advances.  On 26 April 2007, Ms Dye told Dr Parmegiani that she wanted and hoped for a relationship with Mr Blomfield.  That is quite the opposite of the suggestion made by Ms Dye in her evidence in the present proceedings that she held Mr Blomfield off from the beginning and resisted his attempts to commence a relationship.  On the contrary, it is consistent with the view to which I have come, on consideration of the whole of the evidence in the proceedings, that Ms Dye very much wished to have a personal and intimate relationship with Mr Blomfield.  She demonstrated this desire on 15 June 2006.  It persisted and she demonstrated it even more openly on 8 August 2006.  When she was rebuffed she went into a decline.  Nevertheless, apparently, all hope had not faded and after she went to work in LBB the hope remained alive sufficiently that she became very upset at the lack of interest which Mr Blomfield showed in her.  This material demonstrates, apart from anything else, that Ms Dye was quite untruthful in her evidence in the present proceedings when she said she was not at all interested in Mr Blomfield.

4. Dr Parmegiani agreed that Ms Dye was devastated by Mr Selvarajah’s declared intention to more formally invoke the continuous improvement policy provisions.  Dr Ronnie Zuessman, a psychologist Ms Dye saw for the purpose of the present proceedings, also said that a person with Ms Dye’s profile would find performance management difficult to cope with and would react with dismay.

5. There is no occasion to discuss the further detail of the medical evidence.  Dr Grewal and Dr Parmegiani, who were Ms Dye’s treating doctors, relied on what she told them as true, both with respect to factual matters and with respect to her feelings and symptoms.  So did Dr Zuessman and Dr Anderson, a psychiatrist whom she saw at the request of the respondents.  None of those practitioners could give independent evidence which gave any support to Ms Dye’s factual assertions.  The symptoms she described were, at the least, as consistent with her being distressed by criticism of her work performance as with any other cause.  The timing of Ms Dye’s reported symptoms appears to me to be consistent only with such matters.  There is no foundation upon which to link Ms Dye’s allegations of sexual assault or sexual harassment in the present proceedings with her reported symptoms during the period of her employment. 

6. In any event, none of the treating doctors assessed Ms Dye as having suffered any permanent, or even serious, psychological injury.  In Dr Parmegiani’s case he thought her symptoms had resolved by May 2007.  She did not choose to see him again until after her employment had come to an end.  In the meantime she devoted her energies to manipulating the position to attempt to secure a workers compensation payment and then some other form of settlement or a return to work on terms which were favourable to her.  In that she had the assistance of Dr Grewal but he does not appear to have given any independent thought to whether Ms Dye’s circumstances truly justified the certificates which he continued to issue at her request and in the terms suggested by her.    I regard those certificates and their contents as an unreliable guide to any injury or adverse consequence for Ms Dye, then or now.

7. The medical evidence, such as it was, would therefore not have provided any foundation for a significant amount of compensation, even if Ms Dye had managed to make good some of her allegations of sexual harassment.

   Damages for economic loss

8. Ms Dye did not have a demonstrated history of a capacity to obtain work as and when she pleased, even when suffering no apparent disadvantage.  During the course of her employment with CommSec she made various applications for positions within and outside CommSec and the bank.  Apart from her acceptance by Mr Patterson (to whom she was going to be transferred in any event) and Mr Selvarajah (as his third choice) there is no evidence that would sustain the proposition that Ms Dye easily found alternative positions.  There is some evidence that she, generally speaking, did not secure the positions which she sought.  That is a factor which must be borne in mind in assessing any allegation that her employment prospects were damaged by any conduct of the respondents.

9. The picture presented by the evidence after Ms Dye left the employment of CommSec is not really any more advantageous to her when scrutinised.  She managed to secure employment at Bond University, to act as a temporary replacement to someone who had gone on maternity leave.  That was a position under contract for a fixed term of approximately eight and a half months.  Two months into the term of that contract Ms Dye gave it up.  The reason given in evidence in the present proceedings was that she found it necessary to devote her time to the preparation of the present proceedings.  I find that explanation quite unconvincing.  Although there was tendered in evidence a folder of material said to represent unsuccessful applications by her for positions of various kinds, there is no reliable indication available from that material as to the reason why she was unsuccessful.  In particular there is no reason to attribute that lack of success to anything that the respondents did or were perceived to have done, apart from some opinion evidence to which I will turn in a moment.  Whether Ms Dye was correct to devote her time to the present proceedings is not a matter which I need decide.  The more important point is that the evidence does not show that her prospects for employment have diminished as a result of anything which the respondents did or said.  That is not to say that they may not have diminished, but that is a different question altogether.

10. Ms Dye’s evidence of her future economic loss was provided by Mr Adrian Kelly, a chartered accountant.  I intend no criticism of Mr Kelly when I say that he did the best he could with what was available to him, which was not much.  Mr Kelly calculated Ms Dye’s loss of earnings from 10 November 2007 until 30 November 2010, shortly before the date of his report, at $240,229.  He calculated Ms Dye’s future economic loss (to age 65) at $3,350,839.  Mr Kelly’s calculations were affected significantly by the assumption that an amount of $16,625 per annum was an appropriate figure to represent Ms Dye’s annual earning potential after 10 November 2007.  Mr Kelly’s assumption was that Ms Dye was capable of earning only that amount in future.  The assumption was not sound.  The amount of $16,625 represented the salary earned by Ms Dye pursuant to her fixed term contract with Bond University until she gave it up.  Ms Dye’s earning figures from that period have not been shown to be a true reflection of what she might, with diligence, have earned in that period, nor what she might earn in the future.  That is no criticism of Mr Kelly but it erodes his calculations to the point when they could not have been of any assistance.

11. As his was the only relevant evidence about the matter, the result was that neither past or future economic loss was proved to an acceptable standard.  That is just one more defect in Ms Dye’s case.

    Loss of reputation

12. The matters to be discussed here are relevant to the last issue also.  Ms Dye’s evidence about her economic loss, apart from the matters which I have mentioned, consisted principally of opinions from Mr James de Berg presented in the form of an expert report.  Mr de Berg is a managing director of a recruitment company.  Mr de Berg’s opinion was that Ms Dye will face great difficulties in seeking future employment.  The foundation for this opinion, if it is to be given any weight at all having regard to its very general character, is important to appreciate.  Mr de Berg’s opinion was not based upon the proposition that anything said or done by any of the respondents in either of the proceedings had contributed to difficulties for Ms Dye in seeking future employment.  His opinion was that such difficulties would be faced by her as a result of the publicity generated by the publication of her allegations against Mr Blomfield and Mr Patterson.  He confirmed in his oral evidence that that was the foundation for the views which he expressed in his report.  The publication of those matters is something for which none of the respondents in either of the proceedings may be held responsible.  I have expressed my view that they are matters for which Ms Dye must be held (perhaps with Mr Rochfort) responsible but the allocation of responsibility to her is, in fact, not necessary to make the present point.  The point is that none of the respondents are liable for the publication of those matters.  Nor may it be said on Mr de Berg’s evidence (or otherwise in my view) that anything said by CBA, by Ms Chapman or by Mr Norris as a response to those allegations would provide her with a foundation for any relief. 

13. 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

14. 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

15. 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.

16. 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

17. 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. 

I certify that the preceding seven hundred and forty-four (744) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       16 March 2012