Habermann v Cook Shire Council - [2025] QSC 214

SUPREME COURT OF QUEENSLAND

CITATION:

Habermann v Cook Shire Council [2025] QSC 214

PARTIES:

ELLANNA STORM HABERMANN

(Plaintiff)

v
COOK SHIRE COUNCIL

(Defendant)

FILE NO/S:

SC 290 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 August 2025

DELIVERED AT:

Cairns

HEARING DATES:

7-10, 14-15 July 2025 (supplementary submission of Defendant received 16 July 2025)

JUDGE:

Henry J

ORDERS:

1. Judgment for the Plaintiff in the amount of $2,359,037.64.

2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 12 September 2025, out of town parties having leave to appear by videolink.

CATCHWORDS:

TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – DAMAGE AND CAUSATION – where the plaintiff was an employee of the defendant Council – where an email was fabricated in the plaintiffs name during a third party’s dispute with the defendant – where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position – where the fabricated email was tabled in parliament – where the plaintiff subsequently suffered a psychiatric injury, leaving her unable to perform her employment in any capacity – whether the tabling was a necessary cause of the plaintiff’s injury.

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – GENERALLY – where the plaintiff was an employee of the defendant Council – where an email was fabricated in the plaintiff’s name during a third party’s dispute with the defendant – where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position – where the fabricated email was tabled in parliament – where the plaintiff suffered psychiatric harm as a result of the public dissemination of the email – whether the defendant owed the plaintiff a duty of care – whether the imposition of a duty of care was precluded because the injury resulted from the conduct of third parties beyond the defendant’s control

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – REASONABLE FORESEEABILITY – where the plaintiff was an employee of was an employee of the defendant Council – where an email was fabricated in the plaintiffs name during a third party’s dispute with the defendant – where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position – where the fabricated email was tabled in parliament – where the plaintiff suffered psychiatric harm as a result of the public dissemination of the email – whether there was a foreseeable risk, prior to the tabling, that the plaintiff would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain – whether the defendant breached its duty of care.

Workers Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 306, s 306I, s 306J, s 306N
Workers Compensation and Rehabilitation Regulation 2014 (Qld), s 129, s 130

Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070, cited
Donohue v Stevenson [1932] AC 562, applied
Fraser v State Transport Authority (1985) 39 SASR 57, cited
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, applied
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, distinguished
Public Transport Corporation v Sartori [1997] 1 VR 168, cited
Qantas Airways Limited v Fisher [2014] QCA 329, cited
State of New South Wales v Napier [2002] NSWCA 402, applied
Sullivan v Moody (2001) 207 CLR 562, cited
Tame v New South Wales (2002) 211 CLR 317, cited
Wyong Shire Council v Shirt (1980) 146 CLR 40, cited

COUNSEL:

J Greggery KC with B Bilic for the plaintiff

R Morton for the defendant

SOLICITORS:

Organic Legal for the plaintiff

Jensen McConaghy for defendant

PART A: LIABILITY

Ellana Habermann’s health and career was a casualty of the malevolent conduct of persons who fabricated an email in her name during a dispute with the Council at which she was employed.
The fabricated email purported to be an internal Council email authored by Mrs Habermann to the Cook Shire Council’s Chief Executive Officer. It falsely portrayed her as racist and engaged in a deceitful misuse of her position to prevent a local aboriginal corporation, Gungarde,[1] from assuming control of the lease of a failed waterfront cruise business which owed rent and rates to Council.
[1]Gungarde Community Centre Aboriginal Corporation.
The email was deployed by the director of the cruise business, Pamela Roberson, to encourage Council to settle a debt proceeding instituted by Council against her business. She testified she did not know it was a fabrication. Regrettably, Council botched what should have been the simple task of demonstrating the email was a fabrication. Its failure to do so heightened the risk of the fabricated email being broadcast to the public, thus perpetuating the allegation, implicit in its content, that Mrs Habermann was the author of it. That risk eventually manifested when a Member of Parliament, Mr Rob Pyne, tabled it in Parliament. The result of that public demolition of Mrs Habermann’s character was a lasting psychiatric injury and consequent inability to continue working.
It is a well-established incident of the relationship between employer and employee that the employer owes the employee a duty to take reasonable care to avoid foreseeable risk of injury to the employee, including foreseeable risk of psychiatric injury.[2] Mrs Habermann alleges Council failed, in exercising that duty, to avoid the perpetuation in the public domain of the allegation that Mrs Habermann was the author of the fabricated email. Such perpetuation would necessarily involve the accompanying perpetuation in the public domain of the fabricated email because it was the content of the fabricated email which represented Mrs Habermann as its author. I accordingly approach consideration of the alleged failure in exercising the duty of care in this case as a failure to avoid the foreseeable risk of psychiatric injury to Mrs Habermann from the perpetuation of the fabricated email in the public domain.
[2]Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 53.
Council submits that as a matter of law the scope of an employer’s duty of care cannot extend to guarding against foreseeable risks of employee injury posed by the conduct of third parties, because such third parties cannot be controlled by Council. If wrong about that, Council denies any breach or that it was causative of injury or that the injury was foreseeable.
To aid determination of the scope of Council’s duty of care it is useful to consider the alleged path of causal connection as between the alleged want of care and the damage suffered.[3] In this case that requires consideration of the context in which the existence of the fabricated email emerged, how it was responded to by Council, how its tabling in Parliament was a necessary cause of Mrs Habermann’s injury and whether there was a foreseeable risk that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain.
[3]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 290 [105].
It became clear by the close of evidence that a necessary causal step in the infliction of injury was the tabling of the fabricated email in Parliament by Mr Pyne. Self-evidently Council had no control over the decision-making of Mr Pyne. However, there may have been protective steps Council could and should have taken earlier, making it unlikely that those relying on the fabricated email would have persisted, in turn making it unlikely the fabricated email would have been provided to and tabled by Mr Pyne.
In considering the path of causal connection these reasons will not dwell upon Council’s alleged failures to take some protective steps which, as Mrs Habermann’s counsel acknowledged,[4] fell out of contention as the case progressed. By closing addresses, the potential protective steps attracting particular focus were steps to reveal facts demonstrating the falsity of the fabricated email to the director of the cruise business, Mrs Pamela Roberson and the CEO of Gungarde, Mr Greg Whittaker.[5] These reasons conclude the fabricated email would not have been perpetuated in the public domain if Council had taken those steps.
[4]T6-74 L 30 – 75 L 28.
[5]The failed steps in effect alleged at [20(b) and (d)] of the Second further Amended Statement of Claim.
Mere proof of a path of causal connection does not prove liability in negligence. It will remain necessary to determine the scope of the duty of care, whether it was breached and whether causal responsibility for the damage ought be attributed to Council.
Determination of liability will accordingly involve consideration of the following issues:
1.   Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council’s control?
2.   In what context did the existence of the fabricated email emerge?
3.   What was Council’s response to the promulgation of the fabricated email?
4.   How was the tabling in Parliament a necessary cause of Mrs Habermann’s injury?
5.   Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?
6.   Was there a foreseeable risk, prior to the tabling, that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain?
7.   What was the scope of Council’s duty of care?
8.   Did Council breach its duty of care?
9.   Did the breach cause the injury?
1.   Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council’s control?
Council submits that Council’s duty of care as an employer did not, as a matter of law, extend to taking reasonable care to prevent foreseeable risks of injury to employees posed by the conduct of third parties because they were not able to be controlled by Council. That submission must be rejected.
The scope of an employer’s duty of care to its employees is informed by the employment context from which the duty derives. Thus, the duty’s scope extends to the context of the employee’s performance of work required by the employer.[6] Conversely, it does not extend to preventing foreseeable risk of injury having no connection with the employee’s employment.
[6]Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44.
What though of the scope of the employer’s duty as it applies to foreseeable risk of injury being inflicted by the conduct of third parties targeting employees because they are employees of the employer? Council submits that scope should only extend to cases in which the employer has a power to assert control over the conduct of third parties.
That submission is substantially founded upon the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil.[7] That was an occupier’s liability case, in which the plaintiff, an employee of a video shop in a large shopping centre, was attacked and injured by three assailants in the centre’s carpark after finishing work late at night. Gleeson CJ, with whom Gaudron and Hayne JJ agreed, held the centre did not have a duty to protect against injury resulting from the criminal behaviour of third parties.
[7](2000) 205 CLR 254, 290.
Gleeson CJ observed the ‘general rule’ is that there is no duty to prevent a third party from harming another, because the common law does not ordinarily impose liability for omissions. However, it was also explained there are exceptions to the general rule, deriving from relationships between parties; one such relationship being that of employer and employee.[8]
[8](2000) 205 CLR 254, 265 [26].
In referring to the exception provided by the employer/employee relationship, Gleeson CJ cited Chomentowski v Red Garter Restaurant Pty Ltd,[9] Public Transport Corporation v Sartori,[10] and Fraser v State Transport Authority.[11] The facts of each are instructive.
[9](1970) 92 WN (NSW) 1070.
[10][1997] 1 VR 168.
[11](1985) 39 SASR 57.
In Chomentowski,[12] an employee successfully sued an employer in negligence after being attacked by robbers when he was trying to lodge the takings of the employer’s business late at night at a bank’s night safe. It was held the foreseeable risk of such robbery could have been avoided by not exposing the employee to it, for instance by providing the employee with an armed guard or retaining the takings in a safe at the employer’s premises for banking the following day.
[12](1970) 92 WN (NSW) 1070.
In Sartori,[13] the employer bus company was held liable in negligence after an employee was attacked by an intruder through an unlocked gate to the company’s employee carpark. To guard against the foreseeable risk of trespass by criminals the employer secured the carpark with perimeter fencing topped with barbed wire, accessed by a lockable gate with a newly installed lock. It breached its duty of care by failing to ensure the lock was operating.
[13][1997] 1 VR 168.
In Fraser,[14] a female bus driver was required to ‘lay over’ in a secluded spot where she was dragged from the bus and attacked. There had been previous attacks. Her employer was found to have breached its duty to take reasonable steps to safeguard the driver from such an attack, like providing security at the lay over spot or changing its location.
[14](1985) 39 SASR 57.
Note that in none of those cases did the employer have the power to control the conduct of the third party. In this, the exception to the general rule provided by the employer/employee relationship is different from some other special relationships. Compare the example, cited by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[15] of a gaoler owing a duty to protect a prisoner from attack by another prisoner. In that example the gaoler has the power to control the conduct of the other prisoner. At best the employer in the employer/employee cases cited by Gleeson CJ had the power to control the taking of steps to mitigate against the risk of attack upon an employee by a third party. It was a failure to take those protective steps which constituted the relevant breach in each case. In this context, it is to be appreciated that the object of the employers’ duty of care is the avoidance of foreseeable risk to its employees. That taking reasonable steps to try and avoid such risk may not guarantee success does not eliminate the existence of the duty.
[15](2000) 205 CLR 254, 292 [111].
Council’s argument would have it that even if there are reasonable protective measures an employer can take to mitigate against the foreseeable risk of injury posed to employees placed in the path of third party harm because of their employment, the employer has no duty to act because it has no legal power of control over the third party. This ignores the notorious fact that the potential misconduct of third parties can be materially influenced, including deterred, by protective measures taken by others who have no legal power of control over them. It also ignores that employees are vulnerable to such harm because they are employed by the employer.
It is the nature of the power relationship as between employer and employee, not the employer’s power over third parties, which justifies the exception to the general rule identified by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil.[16] In that relationship there is a power imbalance, with the employee in the vulnerable position of acting in service of the employer.
[16](2000) 205 CLR 254, 265 [26].
An employee’s service of an employer may potentially place the employee at foreseeable risk of harm from a third party. For example, a road worker at a road works site may be put at foreseeable risk of physical harm by a third party, such as an inattentive driver. A bank teller may be put at foreseeable risk of psychiatric harm by a third party, such as a terrorising bank robber. In such cases the employer has no legal power of control over the third party but that does not mean the employer is unable to take steps to mitigate against the risk of the third party harming its employee.
Where an employer holds the power to take reasonable protective steps to avoid the foreseeable risk of injury posed by third parties to its employees, in their capacity as its employees, then the employer’s duty of care to its employees requires it to take such steps. What if any protective steps are reasonable to take will inevitably depend upon the individual circumstances of the case, including how onerous the steps may be relative to the magnitude of the risk and the apparent probability of the steps influencing the third party’s conduct.
Before turning to the circumstances of this case, I note Council’s Third Further Amended Defence denied the pleaded duty because ‘any such duty would be inconsistent with the law of defamation’. Also, Council’s written outline of submissions asserted, citing passages in Tame v New South Wales,[17] Council should not be found liable because any duty owed would be a duty to guard against what non-employees might publicly say about Mrs Habermann ‘which may have been inconsistent with the law of defamation’. However, the denial and the assertion attracted no actual submissions from Council.
[17](2002) 211 CLR 317 (Council cited [2], [28], [58], [122], [123], [126], [323], [325]).
The existence of the law of defamation does not preclude the imposition of the duty of care contended for here. The passages cited in Tame derived from the principles which denied the existence of a duty of care in Sullivan v Moody.[18] The potential incoherence of law with which those passages and principles were concerned was the imposition of a duty of care upon persons or entities which would be incompatible with other duties owed by a defendant.[19] Council has not identified any duty it held which would be incompatible with it having a duty to take reasonable protective steps to avoid the foreseeable risk of psychiatric injury posed to Mrs Habermann as its employee by third parties perpetuating the fabricated email in the public domain.
[18](2001) 207 CLR 562.
[19]See in particular Sullivan v Moody (2001) 207 CLR 562 at 581 [55].
The only arguable basis faintly raised in the course of this case to suggest that Council’s duties or obligations obliged it to refrain from reverting to Mrs Roberson and Mr Whittaker with information demonstrating the fabricated email was fabricated, was privacy, but her privacy was only at risk if the email was perpetuated in the public domain. This provided yet a further reason for Council to revert to Mrs Roberson and Mr Whittaker. They already had the fabricated email. Privacy concerns were therefore of no application in communicating further with them about it, but provided ample reason to do so, so as to mitigate against the perpetuating of the email in the public domain by them or their associates.

2. In what context did the existence of the fabricated email emerge?

The converging paths of Mrs Habermann, Mrs Roberson and Mr Whittaker

The plaintiff, Mrs Habermann, moved to Cooktown to commence the position of Procurement Officer with the defendant, Cook Shire Council, in 2006, aged 28. She enjoyed living there, became well settled there and has lived there ever since. She commenced a relationship with another Council employee, John Habermann, in 2007. They married in 2009 and had three children, in 2010, 2012 and 2016.
Mrs Habermann, a well-qualified and high performing employee, rose in Council to the position of Business Services Manager and subsequently the position of Governance and Risk Manager. Her roles at Council involved her implementing Council’s improved compliance with the laws and regulations binding local government, including in respect of tenders for Council related work and assets. The professional performance of such a modernising ‘change agent’ role would inevitably have attracted some resentment. That is particularly so in a region where, as former CEO Timothy Cronin testified, some people think ‘there are no rules north of the Daintree’.

Council leased a waterfront property on the Endeavour River in Cooktown to Cayman Cruises Pty Ltd trading as Cooktown Cruises. Its principals, Pamela and Lyle Roberson, ran a cruise boat business from there, but it had suffered losses through interruptions to trading because of family illness related obligations and supply chain difficulties. Cayman Cruises advertised to sell the business in late 2011, hoping to pay their outstanding rent and rates to Council from the proceeds.
At one point Mrs Roberson spoke with Mr Greg Whittaker, CEO of Gungarde, about the possibility of Gungarde buying the business. Mr Whittaker became interested in the possibility of Gungarde’s involvement if it could have a 10-year lease. Cayman Cruises’ lease had less than four years to run.
On 27 August 2013 Mr Whittaker met Mayor Peter Scott in the presence of Mrs Habermann and Mr McCrae, the manager of Council’s planning and environment section. Mrs Habermann thinks the Council’s then CEO, Mr Wilton, may also have been there. Mr Whittaker informed the meeting that Gungarde was a prospective purchaser of Cayman Cruises’ business. He said they were seeking Council’s confirmation, in the event of such purchase, that the Cayman Cruises lease would be assigned or transferred to Gungarde and extended to become a 10-year lease.
Mrs Habermann’s presence had been requested to explain procedural processes. She explained the process was that the lease should be put to public tender. That she provided such advice is unremarkable given the lease was an income generating public asset and a lease of 10 years was mooted. As she explained in evidence, there can be exemptions, but the orthodox course is to put such an asset to public tender. In the years to come, that provision of bureaucratically orthodox advice may have identified her as an illogical target of resentment by persons who perceived that Cayman Cruises’ travails could have been solved back when Gungarde showed interest.
Mr Whittaker advised his board against buying Cayman Cruises’ business in the absence of the assurances he had sought from Council. As for Cayman Cruises, Mrs Roberson had made repeated written requests on its behalf to Council seeking waiver of outstanding rate and rents owed and advising the business was up for sale.[20] The requests had gone unanswered by Council so she complained to the Ombudsman.
[20]Exs 44, 45, 46, 48.
Mrs Habermann was unaware of these unanswered requests and only came to know of that problem incrementally through August and September 2013. In that era she learned Mrs Roberson had complained to the Ombudsman and then spoke with Mrs Roberson and went through the letters Mrs Roberson had forwarded to the Ombudsman’s office.
The authentic email and the fabricated email
On 13 September 2013 at ‘4:39:58 PM’ Mrs Habermann sent an email (‘the authentic email’) to Cayman Cruises’ Mrs Roberson, cc’g Council’s CEO Stephen Wilton, regarding Council’s failure to address repeated requests by Cayman Cruises to waive outstanding rates and rent owed and wanting to know if they had gone before Council.[21]
[21]Exs 1, 34.
This authentic email, of 13 September 2013, began:
Good afternoon Pam,
I am sorry for the delay. I was going to contact you mid-week but things got away from me.
After we spoke the other week I went through the various letters you forwarded to the ombudsman office. I am very sorry your requests have not been acknowledged and you have not received timely information or action with reference to your inbound correspondence.
Based on the information in those letters and our talk, I have determined your matter in issue to be as follows:
1. You have made multiple requests to have your outstanding rates and rent (over the Webber Esplanade lease) waived as a concession to genuine hardship. You have received no response to these requests, but have received ongoing demands for both overdue rates and rent in arrears.
2. You would like to know whether your request for consideration has gone before Council; and
1.if yes, what was the outcome? Or
2.if no, why has it not gone before Council?
With reference to the above, I have established that your request has not yet gone before Council. For this I apologise. It is very poor that it has taken so long to action and that, despite your letters to Council, no decision has been reached. In this case the reason for the delay is that the letters were going to one department but were not being seen by our accounts, leasing and rates department – the department who would have actioned your request and who have been sending you letters of demand. This must have been very frustrating for you and is a failure in our operational processes. I will look to have this failure rectified so that it does not happen again.
To put things right, and to make sure you are awarded a decision as soon as possible, I will undertake to place your request for concession before the October Council meeting. …[22]
[22]Ex 1.
The email continued in a similarly professional tone, requesting the provision of some further information. It finished with these words:
If I receive that documentation by the end of the first week of October, your report will go before the October Council meeting. I hope this is an acceptable outcome to your complaint?
Kind regards and sincere apologies
Beneath that appeared Mrs Habermann’s standard email descriptors containing her name and position, along with her phone, fax and mobile numbers, her email address, Council’s website address and its postal address.
It is contextually helpful at this point to explain the content of the fabricated email. It was created about three years later but its fabricator pretended it was written by Mrs Habermann at virtually the same time as the authentic email. It purported to be an email from Mrs Habermann to then CEO Stephen Wilton at his Council email address. Its subject title was endorsed ‘Meeting’. It was purportedly dated ‘Fri, 13 Sep 2013 16:39:57+1000’. The ensuing content was:
I am sorry for the delay.
I was going to contact you but things got away from me. We had the meeting with Greg Whittaker. He’s looking to purchase the Webber Esplanade lease of Cayman Cruises Pty Ltd. Ms Roberson has made multiple requests to have outstanding rates and rent waived as a concession to genuine hardship or until it sells. We have made no formal response to these requests. This has not put her off and the request for consideration has to go before Council soon as she has contacted the Ombudsman’s office.
After meeting with Greg Whittaker, I went through the various files you forwarded me and with what the ombudsman sent through I have sufficient information to make sure the decision is made in our favour. It was bad enough that we had to hand over the housing to the dirty bastards we don’t want them down there. I will undertake to write and place a request before the October meeting. No action has been taken with the adjacent lease at this time although I am trying to stop that progressing.
I can assure you this report will be handled with discretion. I will ensure it is kept secure.
Contact me if you have any questions. I hope this is an acceptable outcome.
Kind regards (emphasis added)
Mrs Habermann’s name, position and contact details then followed.
The facts persuasively demonstrated the email was a fabrication
I find this email was a fabrication. As much was clearly established, but regrettably not clearly explained or announced, when examination of Council’s email system confirmed the fabricated email had not existed within it. There was also a persuasive array of other facts demonstrating it was a fabrication.
In summary, those facts were:
(1)   The only purported metadata ever provided for the fabricated email is for a document created in July 2016 in an author field named ‘Roberson family’.
(2)   The fabricated email’s content and that of an email trail supposedly connected to it have 10 discrepancies from a genuine Council email on their face.
(3)   The purported time of the fabricated email is a mere one second’s difference from the genuine email. It is unlikely the same sender could have engineered, let alone bothered to engineer, such extraordinary synchronicity.
(4)   The fabricated email commences with the same opening words as the genuine email. That is an implausible coincidence. The opening words of the genuine email have obviously been copied in an attempt to mimic Mrs Habermann’s style of expression.
(5)   The fabricated email’s substantive content smacks of contrivance. Note the conspiratorial closing assurance of secrecy, ensuring ‘it is kept secure’. The reference to ‘it’ could contextually only have been either the content of the email itself or the report to be made to Council for the decision. If it was the content of the email, the very use of email, instead of a simple conversation, would have been creating evidence of the secret. If it was the report to Council then it was no secret - the evidence shows Mrs Habermann gave Mrs Roberson a copy of the report which she gave to Council. Another contrived aspect of the content is its reference to having to ‘hand over’ housing. That is a contortion of the unsensational reality, explained in Mr Whittaker’s evidence, that Council had ceased some involvement in social housing whereas Gungarde had continued its involvement.
(6)   The fabricated email’s content is at odds with the objective evidence of how Mrs Habermann in fact behaved within Council on that very day regarding Mrs Roberson’s lease. For example, at 4.15 pm on 13 September 2013, only 25 minutes before the alleged sending of the fabricated email, Mrs Habermann sent an email to Anne Kelly and Kirstin Fletcher of Council’s rates and arrears section, cc’g CEO Stephen Wilton. Its message content, excluding salutations, was:
Can you please put a halt on any further follow-up to rent and rates in arrears with reference to the Webber Esplanade Lease (Cayman Cruises). They have been asking repeatedly that their outstanding debt be put before Council for hardship consideration, and we (including myself) have been chasing them for those debts, without responding to their request for hardship. Right and left hand not talking to each other.
So, given they have now taken this to the ombudsman (and it looks like we really should have gotten back to them before) I’ll put their request before Council next month, and then we’ll have a concrete decision as to how we go forward.
I’ll keep you posted.[23]
The content of that email demonstrates that Mrs Habermann’s solicitous attitude to Mrs Roberson’s problems with Council, as contained in the authentic email to Mrs Roberson, was mirrored by the attitude Mrs Habermann was exhibiting in internal Council correspondence about the matter at that very time. It is inconsistent with the sinister attitude the fabricated email depicts her as having at that time in her internal Council correspondence.
(7)   The fabricated email’s substantive content is inconsistent with evidence of Mrs Habermann’s demonstrated professionalism and empathy towards the Indigenous community in her work on behalf of Council and, for that matter, in her studies. As to the latter, Mrs Habermann’s thesis in achieving her Masters in Urban and Regional Planning in 2012 was on an inclusive strategy for Indigenous land use, planning and development for land returned to traditional owners on Cape York.
(8)   As soon as the fabricated email was provided to Mrs Habermann, she emphatically and convincingly denied writing it. She pointed out many of the above facts, explained the email would not be in Council’s system because it was a fabrication. Further, in an unlikely step to take if she had authored the email, she specifically requested Council to appoint an independent IT expert to examine Council’s email system so as to establish the truth.
[23]Ex 21.
Mrs Habermann put Mrs Roberson’s request to Council, but Council rejected it
On 3 October 2013 Mrs Habermann sent an email to Mrs Roberson advising she had placed an attached report before Council for its consideration as ‘Committee of the Whole’.[24]
[24]Ex 49 within a chain of emails commencing with the authentic email of 13 Sept 2013.
True to her word, Mrs Habermann had submitted a confidential request to Council’s Committee of the Whole in early October 2013. It was headed, ‘Request for waiver of rent and rates in arrears - Cayman Cruises’. It neutrally explained the matter’s history, the regulatory framework to be applied by Council regarding eligibility for concessions due to hardship and the nature of the lessor’s hardship. It concluded by identifying the alternative potential decisions which it was for Council to make, namely:
a.   grant a full rebate of all rates and charges and write off the outstanding lease rental;
b.   refuse the application for a rebate and refuse the application to write off the debt for outstanding lease rental;
c.   defer payment of rates, charges and lease rentals until the business is sold;
d.   grant a concession of 50% or other percentage determined by Council on all outstanding rates, charges and lease rentals.[25]
[25]Ex 22.
Council resolved not to waive, write-off or defer the outstanding rates and rent.
About a year later, on 13 October 2014 Council took possession of the leased property because Cayman Cruises had failed to remedy its breach of not paying rates and rent.[26]
[26]Ex 51.
Council pursued a debt claim against Cayman Cruises
On 31 July 2015 Council filed a debt claim against Cayman Cruises in the Cairns Magistrates Court seeking recovery of the outstanding rates and rents.[27]
[27]Ex 53.
On 16 September 2015 Cayman Cruises filed a notice of intention to defend and a defence in the debt proceedings. The defence alleged the Council had failed to take reasonable steps to mitigate its loss, referring to Council not supporting Gungarde taking over the lease.[28]
[28]Ex 53.
How the fabricated email was allegedly found in Cayman Cruises email account
Mrs Roberson was assisted in searching for and providing evidence for the debt claim from Cayman Cruises’ records by Ms Kym Jerome. To that end, Mrs Roberson gave Ms Jerome access to her computer and Cayman Cruises’ email account so Ms Jerome could retrieve relevant data. On Mrs Roberson’s account it was Kym Jerome who found the fabricated email in the Cayman Cruises email account, which Ms Jerome was accessing on Ms Jerome’s computer. They were at Ms Jerome’s house at the time. Ms Jerome drew it to her attention, asking if she had seen it, which Mrs Roberson had not, so she asked Ms Jerome to forward it to Mrs Roberson’s family’s email address.
Ms Jerome, who was not called as a witness in this trial, was a prominent member of the Cook Shire Residents and Ratepayers Association. By this era the Association was very active in its criticism of Council, both in the content of its Facebook page and its repeated complaints and demands to Council. The Association’s attitude to Council in this era was variously described by witnesses as toxic and aggressive. The Association’s Facebook page would sometimes refer to specific incidents and specific employees on its Facebook page. Gungarde’s Mr Whittaker, who was President of the Association in this era, testified that Ms Jerome would regularly post vitriolic posts about individuals in Council. He also testified that Gungarde’s relationship with Council in this era was ‘no good’.
Council’s CEO between mid-2015 to mid-2018, Mr Cronin, testified to having had quite a few conversations with staff who were upset about being targeted by the Association. He explained his approach was to urge staff to put the Association’s comments about them to one side and focus on dealing with the issue raised. Ms Boulton, Council’s Human Resources Manager, testified Council’s view, in the face of the Association’s seeming absence of respect for personal boundaries, was that engaging with the Association would only ‘fuel their fire’.
That approach - ‘don’t engage, keep calm and carry on’ - may be apt to some interactions between employees of a bureaucracy and irate members of the public. As will be seen it was not an apt response in the extreme circumstances of this case.
The debt claim defence builds its grievance about Gungarde not being permitted to come to Cayman Cruises’ financial rescue
On 12 September 2016 Cayman Cruises filed a defendant’s reply to the Council’s reply in the debt proceedings, attaching copies of its repeated past requests to Council.[29] The defendant’s reply annexed a letter by Mr Whittaker dated 22 August 2016, headed with reference to Council’s debt claim case against Cayman Cruises.
[29]Ex 53.
Mr Whittaker’s letter outlined his recollection of his attendance at the meeting of 27 Aug 2013 with Mayor Scott at which Ian McCrae and Mrs Habermann were present and he had raised Gungarde’s interest in the takeover and extension of Cayman Cruises’ lease. His account of the meeting in the statement was more detailed than recalled by his testimony as a witness in the present case. It included reference to Mrs Habermann’s advice of the need for a tender process. Notably it did not allege, nor did he testify, that there was any express mention in that meeting of Cayman Cruises’ debt and its requests to Council regarding its debt. The highpoint was an expression of opinion in the letter that Mrs Habermann ‘had knowledge of the situation of the lease’.
The purpose of filing this statement in the debt claim seems obscure until it is realised someone on Mrs Roberson’s side may have been hoping to support the inference Mrs Habermann had known at the time of the meeting of 27 Aug 2013 of Cayman Cruises’ unanswered requests to Council regarding its debt. Inferring such knowledge would undermine Mrs Habermann’s assertion in the genuine email some weeks later in September 2013 that she had not known of it. More importantly, it would add superficial credibility to the fabricated email, assuming of course that someone on Roberson’s side had conceived of the malevolent plan of creating it by the date of Mr Whittaker’s letter of 22 August 2016.
The ensuing events of 14 September 2016, two days after the filing of the above Reply annexing Mr Whittaker’s letter, strongly suggests such a plan was afoot.
Forewarning of the fabricated email’s existence and its capacity for harm
On 14 September 2016 former Councillor Charles Martin spoke by telephone with Mrs Habermann, after several unsuccessful attempts to contact her. Mr Martin told Mrs Habermann he had been told of an email Mrs Habermann had sent to Stephen Wilton on 13 September 2013 which was sent to Bob Norris, the CEO’s assistant, and which Norris sent to the Councillors on 16 September 2013. He told her that in the email she was racist and had said she would not allow the filthy mongrels at Gungarde to be allowed on the leased block. Mr Martin explained he had been told of the email by Mrs Roberson and by Mr Whittaker and by Ms Jerome.
It is likely the fabricated email, or at least a version of it, had been created by this time. That appears likely because, when the fabricated email was more overtly deployed in 2017, its fabricated form took the purported appearance of being within an email trail including emails of 13 and 16 September 2013. They were the same dates Mr Martin spoke of when he telephoned Mrs Habermann. While her evidence of what he said is not evidence of the truth of its content, the coincidence of the dates mentioned is probative of the likely existence of the fabricated email by the time of Mr Martin’s call.
After receiving Mr Martin’s call on 14 September 2016, Mrs Habermann sent an email to CEO Tim Cronin, Acting CEO Martin Cookson (Mr Cronin was on leave) and then Human Resources Manager Sarah Wright, cc’g Narelle Dukes, CEO’s executive assistant and John Habermann, Mrs Habermann’s husband.[30] The subject was ‘PHONE MESSAGE – Phone Call with Charlie Martin – Allegation of Racism’. The email described Mrs Habermann’s receipt of the phone call from Mr Martin and what he had told her. She wrote the content of what he told her was ‘distressing and confronting’.
[30]Ex 23.

Mrs Habermann’s email about what Mr Martin had told her, emphasised she was not racist, she had been supportive of traditional owners in her work and she denied writing the alleged email. Council admits Mrs Habermann was concerned about the allegation that she was racist having regard to her demonstrated commitment to racial equality and promotion of the interests of traditional owners in respect of land tenure.
Mrs Habermann also testified of the concerning notion that someone being ‘out there’, talking about her writing emails condoning racism, had the potential to ruin her career, destroying relationships she had worked so hard to build in ‘such a small town’.
Mrs Habermann’s email asked that the content of any email she had sent on 13 and 16 September 2013 be established. She explained if it did exist in the community, it would not be in its original form, would have been altered and the metadata of the altered email should evidence any changes.
Mr Cronin, who had returned from leave four days after Mrs Habermann’s email of 14 September 2016, testified he appreciated her email’s significance, allegations of racism being extremely serious and incredibly damaging against the person they are made about. He testified this impact was amplified in a small community like Cooktown with a high Indigenous population, with which Council had strived to maintain a harmonious relationship. It had not come as a surprise to him that Mrs Habermann had found what Mr Martin told her incredibly distressing.
Because Mr Cronin was the Chief Executive Officer of Council it is logical to treat his knowledge of relevant circumstances in this case as constituting corporate knowledge, that is, the knowledge of Council. Council did not contend otherwise.
Council was thus forewarned, not only of the possible existence of a fabricated email but also of the potential for its existence in the community to cause significant distress to Mrs Habermann. It is not suggested Council took any substantial steps in response to Mrs Habermann’s email to it of 14 September 2016. However, at that stage Council did not have the email which Mr Martin had told Mrs Habermann about. That changed in February of the following year when the fabricated email was deployed in the debt claim.

3. What was Council’s response to the promulgation of the fabricated email?

The fabricated email is deployed in the debt claim

A conciliation or settlement conference in the debt claim was set by the court to occur on 28 February 2017. This apparently prompted Cayman Cruises on 16 February 2017 to file an affidavit of Mrs Roberson in the debt claim. The affidavit, affirmed 14 February 2017, annexed ‘certificate of exhibit 1 to 83’, the attached version of which contained exhibit 49A ‘extract from email’ dated 13 September 2013.
Document 49A included the fabricated email, quoted in full earlier in these reasons. It appears document 49A must also have included some purported surrounding email chain content. The affidavit alleged the exhibits showed Mrs Roberson had been unfairly treated, her attempts at resolution flagrantly disregarded and that there had been ‘collusion within the officers and their roles and responsibilities to deliver fair and sound business practices’.[31]
[31]Ex 54.
A curious feature of the purported email chain is that, if all genuine, it meant various persons, including Councillors and Cayman Cruises, would have received a copy of the fabricated email some years earlier, yet there is no evidence anyone noticed it then. Mrs Roberson was to later explain the late emergence of document 49A in an email to Samantha Taylor of Forbes Dowling Lawyers, Council’s solicitor in the debt claim. She asserted that ‘a few older documents came to light when we were preparing for the settlement conference and I didn’t feel it would be right to drop them on you on the day’.[32] The surprising implication was that Mrs Roberson failed to notice such a memorable email as the fabricated email back when it had supposedly been received within her business’s emails in 2014.
[32]Ex 26 p 375.
It is also curious that Mrs Roberson was seemingly implying to Ms Taylor that the document had only come to light in preparing for the forthcoming settlement conference when Mr Martin had in the previous year advised Mrs Habermann he had heard of its existence and content, from allegedly talking to Mrs Roberson, Ms Jerome and Mr Whittaker.
Mrs Roberson gave evidence for Mrs Habermann in the present proceeding, explaining in effect that she was testifying to try and make good what she unwittingly may have been involved in. She denied having fabricated the email. If her denial is accurate, it is likely someone else with access to Cayman Cruises’ emails created the fabricated email, it being part of an email chain purportedly emanating from Cayman Cruises. It is unnecessary in this case to determine which person or persons actually fabricated the email. The pertinent point about its origin in this case is that it was fabricated, that is, it was not written by Mrs Habermann.
On 22 February 2017 Samantha Taylor emailed document 49A to Narelle Dukes, cc’g CEO Tim Cronin. Ms Taylor wrote she was unsure how Mrs Roberson came to possess the email but could not see how it could affect the debt claim.[33] Council was now in possession of a copy of the fabricated email. Given the content of Mrs Habermann’s distressed email to Council of 14 September 2016, Council would have realised it was the document referred to by that email. It thus already knew Mrs Habermann denied having written such a document and had been distressed by the allegation that she had.
[33]Ex 24.
Mrs Habermann learns of the deployment of the fabricated email
On the morning of 23 February 2017 Council CEO Tim Cronin emailed Mrs Habermann a copy of the fabricated email, apparently in its form as contained within document 49A.[34] His email message was, ‘As discussed’, so he must recently have spoken to her about its deployment in the debt claim.
[34]Ex 24, Ex 26 – Incident report form.
Around lunch-time on 23 February 2017 former Councillor Charles Martin attended Mrs Habermann’s home and informed her he had spoken to Mr Whittaker about the fabricated email and wanted to speak to her about it. She told him the email had not been leaked from Council as it had never been written and was unable to discuss it with him. She repeatedly thanked him and repeatedly asked him to leave. She eventually walked away from him into her house.
Mrs Habermann then sent an email at 1.29 pm on 23 February 2017 to CEO Tim Cronin, cc’g Narelle Duke and John Habermann, advising what had been said when Charlie Martin came to her house.[35]
[35]Ex 25.
Mr Whittaker raises the fabricated email with CEO Mr Cronin
Mr Whittaker testified that on about 21 February 2017 Mrs Roberson gave him a copy of the fabricated email. He testified that about a week earlier he had been stopped in the street and told of the email by Charlie Martin. He also testified that about a week earlier there had been a meeting between him, Mrs Roberson and Ms Jerome about how to assist Mrs Roberson in defending Council’s debt claim against her business.
Mr Whittaker, who was called as a witness by Mrs Habermann, testified that having come into possession of a copy of the email, he contacted Council CEO Tim Cronin, asking to meet with him about it. Mr Cronin met him at Gungarde’s offices in the early afternoon of 23 February 2017. Mr Whittaker gave Cronin a copy of the fabricated email. Mr Whittaker, who had been disappointed by Council in many of his dealings with it, thought the email was genuine and expressed his anger. Mr Whittaker asked Mr Cronin why he had not contacted him about the email’s content but Mr Cronin would not give him a substantive response.
On Mr Whittaker’s account Mr Cronin said nothing as to whether the email was real and the meeting ended without Mr Cronin proffering any explanation or saying what would happen next. Mr Cronin, who was also called as a witness by Mrs Habermann, testified that he undertook to Mr Whittaker to look into and review the email. Mr Whittaker testified that, although Mr Cronin did not actually say he would get back to him, he expected he would do so.
In leading cross-examination by Council’s barrister, it was optimistically put to Mr Cronin that at the time of the meeting with Mr Whittaker he did not have the impression Whittaker expected him to get back to him, and responded, ‘Look, I don’t believe so. But I’m testing my memory, there’. I reject that evidence.
Mr Cronin’s conduct was obviously intended to reassure Mr Whittaker, indeed it was he who attended upon Mr Whittaker. Mr Cronin testified that at the meeting he undertook to Mr Whittaker to look into and review the email. His undertaking carried the obvious implication that Council would investigate the email. It inevitably raised an expectation that Mr Cronin would get back to Mr Whittaker about the investigation of the fabricated email.
Mr Cronin knew Mr Whittaker was named in the fabricated email. He knew Mr Whittaker was CEO of the substantial local aboriginal corporation which the fabricated email implied had been conspired against by Council in a deceitful and racist scheme. He knew Mr Whittaker was also President of the Cook Shire Residents and Ratepayers Association, which had exhibited a willingness to broadcast its criticism of Council. Mr Cronin also knew, as he testified, that if the email became public it was clear it would be ‘quite devasting’.
If genuine, the email cried out for explanation and apology to Mr Whittaker. If fabricated, the fact it was fabricated cried out to be communicated back to Mr Whittaker as soon as possible, before its existence was broadcast. Either way, it is obvious Mr Cronin realised it was strongly in Council’s interests and Mrs Habermann’s interests that he revert to Mr Whittaker as soon as possible. The risk of Mr Whittaker choosing to promulgate the fabricated email if he did not do so was also obvious.
It is therefore obvious Mr Cronin would have known Mr Whittaker expected he would revert to him about the investigation of the fabricated email.
Mr Cronin did not get back to Mr Whittaker. On Mr Whittaker’s recollection he did email Mr Cronin at least a couple of weeks later seeking an update but received no response. Anyway, Mr Cronin needed no prompting to get back to Whittaker. As just explained, he knew it was very important to do so as soon as possible.
No credible explanation has been advanced for the failure to do so.
Mr Cronin gives Mrs Habermann false optimism
During the afternoon of 23 February 2017 Mr Cronin telephoned Mrs Habermann, telling her he had met with Mr Whittaker of Gungarde. Mr Cronin could not recall whether he had such a conversation with Mrs Habermann. I accept he did. Mrs Habermann’s recollection of what she was told in that call by Mr Cronin of the meeting was vague. She testified she understood from Mr Cronin that he had ‘sorted it out’. Mrs Habermann assumed from what she was told by Mr Cronin that he must have explained to Mr Whittaker that the email was not in Council’s system and explained what type of person she in fact was.
The probability is that Mr Cronin was vague in the detail of what he told Mrs Habermann but that what he said was calculated at re-assuring her and leading her to believe he had dealt in some satisfactory way with Mr Whittaker.
In addition to believing there had been a satisfactory outcome to the meeting, Mrs Habermann also perceived Mr Whittaker had been honourable in approaching Mr Cronin regarding the fabricated email, because there were otherwise ‘any number of options for splashing it far and wide’. Accordingly, following the call from Mr Cronin, she telephoned Mr Whittaker in an upset state and thanked him for his discretion in going to Mr Cronin directly.
Mr Whittaker, who at this point still thought the email was genuine, wrongly took Mrs Habermann’s conduct to be an admission that it was. He would soon have been disabused of that false impression if Council had soon reverted to him as expected. Because Council failed to do that, Mr Whittaker’s false impression persisted.
Mrs Habermann provides a persuasive analysis of the falsity of the fabricated email
Later on 23 February 2017 at 6.59pm Mrs Habermann sent an email to Tim Cronin, cc’g Narelle Dukes and Samantha Taylor, subject ‘Document 49 & 49A – Preliminary Response – Denial of Allegation – Further’.[36] She had been drafting the email through the course of the day after having received a copy of the fabricated email and its associated email chain that morning from Mr Cronin. Mrs Habermann denied she had written the fabricated email and attached a statutory declaration to like effect.
[36]Ex 26.
In Mrs Habermann’s email of 23 February 2017 at 6.59pm she also explained the document at issue had been fabricated and the original email needed to be produced so the metadata could be analysed. She observed that as the email was never sent there would be no email nor metadata to support its existence. She noted the existence of an internal email sent by her on the afternoon of Friday, 13 September 2013 - the halt on follow up email to Anne Kelly and Kirstin Fletcher of Council’s rates and arrears section. She highlighted that email had demonstrated a sympathetic attitude towards Cayman Cruises, requesting that further debt collection action be put on hold until the matter was put before Council. She also added to what had previously been said in her email to Council on 14 September 2016 following Charlie Martin’s initial communication with her, by emphasising the implausibility of the implication she was racist having regard to the nature of her Master’s thesis.
Mrs Habermann’s email identified discrepancies in document 49A indicative of fabrication, namely:
Discrepancy 1: The entries against ‘From’ and ‘To’ in 49A’s copies of purported internal Council email used full email addresses yet emails sent within Council only offer the sender/recipient name against ‘From’ and ‘To’, not their full email address.
Discrepancy 2: Spacing between the ‘From’ field and her email address was inconsistent as between a genuine Council email and the alleged email.
Discrepancy 3: The alleged email header’s layout is in italics but the header in a genuine Council email is not.
Discrepancy 4: The alleged email uses a header ‘Date’ whereas Council’s email’s use the header ‘Sent’.
Discrepancy 5: The alleged email’s sent date content format is different from that of Council’s emails.
Discrepancy 6: The alleged email’s heading sequence is different from that of Council’s emails.[37]
[37]I have attributed numbers to the discrepancies.
Mrs Habermann’s email also demonstrated that the metadata associated with attachment 49A, containing the fabricated email, showed it was created by an author called ‘Roberson family’ on 5 July 2016. A screenshot of that data was included. Such data was consistent with it having come into existence some months before Charlie Martin’s first conversation with Mrs Habermann about its existence back in September 2016.
Mrs Habermann asks for an independent IT expert to be engaged
Mrs Habermann’s email noted there was not the appropriate skillset in-house to deal with the matter and asked that ‘an independent IT consultant who specialises in data retrieval be appointed to go back through our systems to establish which emails were in my account and the email accounts’ of others. This echoed her less specific request of 14 September 2016 that the content of any email she had sent on 13th and 16th September 2013 be established.
It is not as if Council needed to be prompted by Mrs Habermann’s request to engage an independent IT expert. What was requested was an obvious step to take, in the interests of both Council and Mrs Habermann, now that Council had a copy of the fabricated email and its allegedly associated emails. It is well known that even deleted emails remain detectable. Examination of Council’s email system by an IT expert could quickly ascertain whether the fabricated email was within it and thus readily demonstrate whether it was genuine or a fabrication. It would also do so credibly, by reason of the expert’s independence from Council and expertise in information technology.
Mrs Habermann describes the event as shattering
The email concluded:
I will do my best to continue working whilst this matter is dealt with. The email itself is shattering: I have trouble reading it, let alone believing it could be used in legal proceedings. The concept that this document is circulating in the community that I have chosen to call home is very difficult to cope with. Basically the whole thing is horrible. Particularly the wording of the pdf submitted. But, I didn’t write it and could never conceive of putting something like that to paper. For this I am grateful.
I look forward to your active support in this matter and thank you for your time so far. (emphasis added)
Such language made it obvious Mrs Habermann was adversely affected by what had occurred.
Mrs Habermann submits WH&S Incident Forms for a ‘psychological’ incident
Mrs Habermann’s email of 23 February 2017 also attached two incident report forms. One was in respect of the email she received forwarded by CEO Cronin ‘whereby an allegation was made that I wrote and sent an email to ex-CEO Steven Wilton containing racial slurs with reference to (I believe) Gungarde’. The other incident report form referred to the attendance by ex-Councillor Charlie Martin at her home. Each incident report form ticked the type of incident as being ‘Other psychological’.
The form describing Charlie Martin’s visit ended, “In the end I walked rapidly away, burst into tears, told him he had to go, and walked inside’. Mr Cronin testified, when that entry was raised with him in evidence, that Mrs Habermann had been greatly distressed by the email and Mr Martin’s presence and insistence exacerbated that.
The pro forma content of the incident report forms included at their beginning the words, ‘Completed forms are to be forwarded to the WHSA’.
Later on 23 February 2017 at 7.29pm the incident report forms were forwarded by Mrs Habermann with an array of other attachments, including Mrs Habermann’s email response of the preceding day, to Human Resources Manager Tracey Boulton, Mayor Peter Scott and Council’s Workplace Health and Safety Contractor Paul Gear, cc’g Tim Cronin, saying:
Tracey, Peter, with reference to conversation with Tim.
Paul, see incident report forms.[38]
Mrs Habermann testified the effect of a related conversation with Mr Cronin was that the information needed to go to Human Resources and Workplace Health and Safety. Mr Cronin testified the forms would have gone to Mr Gear as a matter of course.
[38]Ex 26.
There is no evidence the receipt of the incident report forms triggered any particular workplace health and safety process or response. Yet, the ticking of the ‘Other psychological’ box was obviously an indication to Council that the events had the potential to have an adverse psychological impact upon Mrs Habermann. That indication was reinforced by the above-quoted closing words of Mrs Habermann’s email of 6.59pm. It was also reinforced by Council’s awareness of the obvious point that to any reputable employee it would be disturbing to know they had been malevolently targeted by the creation and propagation of a fabricated email depicting them as racist and engaged in a deceitful misuse of their position.
Council engages an independent investigator who is not an IT expert
At some stage after 23 February 2017 Council engaged LGAQ Total Solutions, Mr Greg Newman, to investigate the fabricated email and provide a report.
The evidence is unclear as to whether Mr Newman’s engagement occurred before or after the settlement conference of 28 February 2017.

Mr Cronin testified the decision to engage Mr Newman was made by Tracey Boulton, Council’s Human Resources Manager. He agreed Mr Newman would not be categorised as an IT specialist and, when asked if he raised that point at any time, responded:
Yeah. Absolutely. I did have that conversation with Tracey saying, you know, “Why did you appoint Greg?” I would have expected someone with more of an IT background but given the fact that Greg was appointed and had commenced work we proceeded with his review.
Ms Boulton on the other hand testified she believed it was Mr Cronin who made the decision and had no recollection of being involved in the decision of who to engage.
Mr Newman was independent; in that he was evidently an employee of the Local Government Association of Queensland. However, he was not an information technology expert. It has not been explained why Council did not engage an independent IT expert to investigate the provenance of the fabricated email and the associated email trail provided by Mrs Roberson.
At the settlement conference Council undertakes to provide its independent report
On 28 February 2017 Council’s solicitor, Mr Cronin, Mrs Roberson and her support person Ms Toni Leigh, attended a settlement conference in the debt proceedings.
The case did not settle. Mr Cronin recalled they expressed concerns at the conference about the authenticity of the fabricated email. Council indicated it would investigate the email dated 13 September 2013 (the fabricated email). The parties resolved at the conference that, before 28 March 2017, Council would provide Mrs Roberson with the findings of its investigations into the email dated 13 September 2013 (the fabricated email) and Mrs Roberson would provide Council with the source code verifying that email.[39]
[39]Ex 42.
On 1 March 2017 Roberson emailed Council’s solicitors, referring to it having been resolved at the settlement conference that Council would provide the report from Council’s independent person investigating the legitimacy of the fabricated email.[40] Regrettably, Council failed to provide Mrs Roberson with its investigation’s findings until many months later, by which time Mrs Habermann had suffered her injury. That inaction is a significant feature of the case.
[40]Ex 55.
Ms Leigh knew of the fabricated email’s deployment and Council’s undertaking
It is significant to understanding the causal path to the eventual tabling of the fabricated email in Parliament that Ms Leigh was by this point acting as Mrs Roberson’s assistant in the case. She had been assisting Mrs Roberson since Mrs Roberson had asked the Cook Shire Residents and Ratepayers Association for assistance with her debt case in January 2017.
Ms Leigh was the Association’s secretary. She blamed Council’s Mayor for the fact her husband’s contract with Council had not been renewed. She was, on Mr Cronin’s account, a prolific contributor to the Association’s Facebook page. Ms Leigh testified her involvement in the Association at that time was highly active and that the relationship between the Association and Council was highly toxic.
On Ms Leigh’s account she had first been told of the existence of the fabricated email in late 2016, by Ms Jerome, who told her she had found it in an email which had been sent to Mrs Roberson. She saw the fabricated email and was aware it had been deployed in the debt case because Mrs Roberson gave her a copy of it and other documents related to the debt claim after Ms Leigh had become involved in helping her. It was Ms Leigh who advised Mrs Roberson to show the fabricated email to Mr Whittaker earlier in February. Further, Ms Leigh was present at the settlement conference at which it was discussed. Indeed, on her recollection of the conference Mrs Roberson had kept bringing up the fabricated email as ‘central’ to the debt issue.
Because Ms Leigh was at the conference, she was well aware of the undertaking Council gave at the conference to provide Mrs Roberson with the findings of its investigation into the fabricated email. Council therefore knew Ms Leigh, the secretary of an association which was Council’s nemesis, was helping Mrs Roberson in her debt case. It knew she was aware of the content of the email deployed in that case and was aware Council had undertaken to investigate its legitimacy and report back its findings to Mrs Roberson by 28 March 2017.
To this point it appeared only a small set of connected people knew of the fabricated email. Its content had not been broadcast to the community more generally. But Council had to have known there was a substantial risk of that occurring if it failed to revert to Mrs Roberson about its investigation outcome as promised. That risk was made even more obvious by the fact Ms Leigh was assisting Mrs Roberson in the case in which the fabricated email had been deployed.
Roberson forwarded the purported email trail and source code
On 2 March 2017 at 7.50am Mrs Roberson sent an email to Samantha Taylor, Council’s solicitor in the debt claim, including a purported email trail beneath it which she asserted was ‘the original email as it was forwarded to me’. The email annexed the purported source codes and a document headed ‘The Messages’.
Later that morning, solicitor Ms Taylor emailed Narelle Dukes and Tim Cronin, referring to a conversation she had with Mr Cronin after the settlement conference two days earlier on 28 February 2017. She noted that since the settlement conference two emails had been received from Mrs Roberson, one of which purportedly enclosed the source code for the questioned email. Ms Taylor recommended to Mr Cronin that he have his ‘independent investigator look into it and provide his/her view on it’.[41]
[41]Ex 28.
The purported email trail and source code makes it even more apparent the email was fabricated
The attached purported source code was headed ‘Message source from copied direct from Outlook’. While a lengthy document, it only referred to one email and it was not the fabricated email. The email to which the source codes related was an email from Cooktown Cruises Roberson to Lyle Roberson and Kym Jerome on the subject ‘FW: Meeting’, sent ‘Tue, 28 Jun 2016 05:12:57+0000’.[42]
[42]Exs 56, 61 (61 is the email plus annexures, 56 is just the email).
It is that email which commenced the reverse chronological chain of emails appearing in the annexure ‘The Messages’,[43] though a different email commenced the chain in Mrs Roberson’s covering letter. The balance of the purported email chain in both was the same.
[43]Ex 2 & annexure within Ex 61.
The purported reverse chronological order email trail provided to Ms Taylor by Mrs Roberson in the annexure ‘The Messages’ contained seven supposed emails. While in reverse chronological order, these reasons will refer to them as email 1, email 2, etc.. They were:
Email 1:     From Cooktown Cruises Roberson; sent Tuesday 28 June 2016 5:12:57 AM UTC; to Lyle Roberson, Kym Jerome; subject ‘Fw: Meeting’. There was no message content. However, the opening email in the purported email trail in Mrs Roberson’s covering letter was a different email (oddity 1). It was, ‘From Cooktown Cruises Roberson; sent Saturday 25 February 2017 2.46am; to Lyle Roberson; subject ‘FW: Meeting’.’
There was no message content.
Email 2:     From Penny Johnson (at Council);[44] sent Tuesday, 15 July 2014 6.33am; to Cooktown Cruises Roberson; subject ‘Re: Meeting …’. The message content was: ‘FYI’.
[44]‘(at Council)’ is inserted to identify a purported Council email address.
Email 3:     From Penny Johnson (at Council – i.e. the Deputy Mayor); sent Tuesday 15 July 2014 6.23am; to Cooktown Cruises Roberson and Cooktown Shire Council, cc P Scott, R Bowman, K Price, A Wilson, Steve Wilton and Bob Norris (all at Council – i.e. Mayor Scott, Councillors, CEO Wilton, CEO assistant Norris); subject ‘Re: Waterfront leases again …’. The message content was:
‘Hello Pam
Many thanks – I have received both cc’d emails with letter         attached.
My apologies for not responding sooner – wifi issues were finally       resolved yesterday
Kind Regards,
Penny.’
Email 4:     From Cooktown Cruises’ Roberson; sent Tuesday 15 July 2014 3.56pm; to Cook Shire Council, cc P Scott, P Johnson, R Bowman, K Price, G Shephard, A Wilson (all at Council), subject: Re: Waterfront leases again …’. The message content was:
‘To all,
Please acknowledge that you’ve received my email.
The letter below, to the CEO, is the same as the document attached to the original email.
On Friday the 4^th July I hand delivered a copy of this for the CEO. I would like to receive an acknowledgment for receipt of that as well.’
Thankyou…
Pam Roberson
Director – Cayman Cruises Pty Ltd ATF’
There was no letter below prior to the commencement of email 5 (oddity 2).
Email 5:     From Cooktown Cruises; to ‘[email protected]’, cc P Scott, P Johnson, R Bowman, S Clark, K Price, G Shephard, A Wilson (all at Council); subject ‘Waterfront leases’; date Fri, 11 Jul 2014 02:30:43+0000. Unlike the preceding emails, email 5 did not follow the heading ‘From:’ with the heading ‘Sent:’. Instead under ‘Subject’ heading there appeared the additional heading, ‘Date:’ (oddity 3).
The message content was, ‘The above attachment is a copy of the letter below.’ However, there was no reference in the email headers to ‘Attachments’ (oddity 4). After that message content there appears what, at first, seems to an image of a conventionally styled letter but it does not end as a conventionally styled letter and contains no image of any signature by the author. It merely ends in the style of an email (oddity 5), with:
‘Kind Regards
Mrs Pam Roberson
Director – Cayman Cruises Pty Ltd ATF’
Further, those ending words are inset from the margin setting of the above words of the purported letter.
The purported letter from Mrs Roberson, was dated 3 July 2014 and addressed to Mr Wilton, CEO of Cook Shire Council at Council’s mail address. It contained a subject heading ‘Re: Waterfront lease and rates assessment number: 10025617’. The ensuing content referred to her business’s need for either Mr Wilton or Council to provide it with correspondence stating Council will be tolerant of negotiations for a new lease over the property in the context of the business’s hardship and its endeavours to sell the property. It sought a response by the end of the month.
Email 6:     Date Mon 16 Sep 3013 15:20:52+1000; from S Wilton (at Council); to B Norris (at Council); subject ‘Re: Meeting’. Notably and unlike any of the previous email headings, this email’s heading content was in italic typeset (oddity 6). There was no reference to a heading ‘Sent’. Instead, it was the heading ‘Date’, located at the top of the series of headings, whereas it appeared at the base of the headings in email 5 (oddity 7). There was no message content.
Email 7(the fabricated email): Date Fri, 13 Sep 2013 16:39:57+1000; from L Habermann (at Council); to S Wilton (at Council); subject ‘Meeting’. This email’s headings were also configured in italics (oddity 8) and it used the heading ‘Date’ rather than ‘Sent’ and put it first in the heading sequence (oddity 9). The message content was the fabricated email’s content quoted earlier in these reasons.[45]
[45]Ex 2.
Some of the above nine oddities were identified in the six discrepancies identified by Mrs Habermann in her email to Council back on 23 February 2017. Oddities, 1, 2, 4 and 5 were not. Adding those four to Mrs Habermann’s six discrepancies takes the count of identifiable discrepancies on the face of the document and its associated email trail to a total of 10. It is inconceivable that all of them have innocent technological explanations.
On its face the email chain Mrs Roberson provided to Council’s solicitor had so many discrepancies as to indicate, even without searching Council’s server, that it was likely an amalgam of genuine parts of past emails and fabricated content. For example, email 3, was in Council’s database and provided a potentially credible foundation to co-opt amidst the fabrication. However, it defies belief, if the fabricated email had been within that communication chain, that Mrs Roberson and all of the people she emailed at Council, from the Mayor down, could have missed such a controversial email at the time. That circumstance adds to an already long and compelling list of circumstances demonstrating the falsity of the fabricated email.
Mrs Habermann tries to be stoic
At some point between 23 February 2017 and the morning of 2 March 2017 Mrs Habermann spoke with solicitor Mal Skipworth of Preston Law. Mr Skipworth regularly acted as Council’s legal advisor and Mrs Habermann interacted regularly with him about governance issues (a different firm, Forbes Dowling Lawyers and its Samantha Taylor, was acting for Council in the Debt Claim). Because Mrs Habermann had confidence in Mr Skipworth she spoke informally with him in this instance about the topic of the fabricated email. She later summarised the effect of that conversation in an email sent on 2 March 2017 at 9.16pm to CEO Tim Cronin, cc’d to Peter Scott, Narelle Dukes, Paul Gear and Tracey Boulton.[46]
[46]Ex 27.
Mrs Habermann’s email explained Mr Skipworth made suggestions but refrained from offering advice. It explained that Mr Skipworth suggested she had drawn ‘the short straw on this one’, that they let the debt collection process play out and that if anything further occurred, they should revisit the matter then, particularly ‘if the email somehow finds its way online, into the media etc.’ Mrs Habermann’s email concluded:
I am happy with this. It consumes no further resources, it wastes no more of Council’s time. It does not relate to the debt collection process. And, whilst initially distressing, in the scheme of things, the content of an unsubstantiated pdf is of little consequence.
Thank you for your support yesterday. I really appreciated how you handled the situation.
When you have a chance, it would be good to know how the settlement meeting went.
Mrs Habermann testified of her closing request to be told of how the settlement meeting went, that she wanted to know what had happened with the documents at the meeting, believing it would ‘close the loop’. Such a belief or hope presumably derived from an expectation Council would have debunked the fabricated email at the meeting.
On a superficial view Mrs Habermann’s outwardly stoic comments about Mr Skipworth’s suggested wait and see approach might be seen as having diminished the need for Council to take any further steps in the exercise of its duty of care towards Mrs Habermann. However, it was not for Mrs Habermann, who did not even know what had occurred at the settlement conference, to advise Council in the proper exercise of its duty of care towards her. Further, the risk of the email being further promulgated in the community, with further adverse impact on Mrs Habermann, was ongoing. Doing nothing, unless and until the risk manifested, would be a novel way of purportedly taking care to avoid foreseeable risk.
Mrs Roberson’s reminder she is waiting for Council’s findings
On 15 March 2017 Mrs Roberson emailed Samantha Taylor, noting amongst other things:
1. The email in question was sent to you on 01/03/2017 along with a PDF document of the source code. What I sent you is, I believe, sufficient for a competent expert.
2. I confirm I await your client’s findings.[47]
[47]Ex 57.
Mrs Habermann is told the report exonerates her, yet she is not given it
A report headed ‘Assessment of Email Records’, was provided to Cook Shire Council by Greg Newman, ‘Senior Advisor Workforce, LGAQ Total Solutions’. The report was dated 22 March 2017. There is no evidence of exactly when it was received by Council but it was likely on or within several days of that date. It will be recalled Council was on a promise to provide its investigation report to Mrs Roberson by 28 March 2017. It did not do so.
Mrs Habermann recalled that, within what she understood to be a few weeks of the report’s receipt, Mr Cronin had told her the report found the fabricated email was not in the Council’s system. However, he did not give her a copy of the report, despite her requesting it from him a number of times (she testified she nagged him for it). It was not provided to her until many months later, on 17 August, which was after the damage was done.
The report persuasively demonstrates the email is fabricated but expresses its conclusions obscurely
Mr Newman’s report explained he had been assisted by Council Information Technology Officer, Armaud Gougeon, in searching Council’s relevant databases. That was its archived email files and so-called TRIM record management system, which allows the controlling and tracking of the creation, use, modification and disposal of Council’s electronic documents. It was thus possible to ascertain whether any of the emails in the email trail forwarded by Mrs Roberson had ever been sent to or received from Council email addresses.
These reasons earlier assigned numbers to the emails in the email trail forwarded by Mrs Roberson. Mr Newman’s focus in concert with Mr Gougeon, was particularly upon emails 6 and 7 (the fabricated email), because of discrepancies on their face. Neither were found in Council databases. While the report did not apply the same focus to the existence of all of the other alleged emails in the trail, its content makes it clear email 2 was not found in Council databases either.
The report noted how the time stamps of the fabricated email and the authentic email were effectively the same, which is inconsistent with both emails being genuine. Its conclusions included:
4. There is no information that was available to support how two emails authored by the same person to different recipients could be time stamped identically.
5. The emailed documents provided by Captain Cook Cruises contains an email from [email protected] (Stephen Wilton) to [email protected] (Bob Norris) dated 16 September 2013 date stamped 15:20:52. This email cannot be located in any folders of the email archives of Bob Norris or Stephen Wilton.
6. Questions were raised about the email from Wilton to Norris dated 16 September 2013 and Habermann to Wilton dated 13 September 2013 as presented by Captain Cook Cruises when observed on line as these emails presented differently from other emails in that the Back/Forward Buttons do not appear. This anomaly could not be explained and requires further investigation.
7. In addition to the observations made in 6 above both these emails were written in italics, which is unique from other emails written by Wilton and Haberman. They also appear to be written in a different font from other emails written by these authors.
8. The metadata supplied on behalf of Captain Cook Cruises at the back of the document were stated by Gougeon as only applying to the first email and does not refer to the emails authored on 13 and 16 September 2013.
…
9. No explanation for the difference in the two emails sent on 13 September 2013 at 15:39:57 from Habermann is available, but even if two emails were sent it is almost inconceivable that time would be the same. The email dated 13 September 2013 sent to Cooktown Cruises is a TRIM record.
10. Based upon the information presented above no absolute conclusions can be reached. However, on the basis of balance of probabilities there seems to be a legitimate basis to question integrity of the emails presented on behalf of Captain Cook Cruises dated 13 September 2013 and 16 September 2013.
11. The integrity of the Cook Shire Council email archives and TRIM data seems sound and no basis exists that points to a lack of integrity of this data.
12. It is therefore concluded that Council needs to pursue further the basis of the anomaly between the two emails dated 13 September 2013.[48]
[48]Ex 33.

Mrs Habermann takes medication to help her sleep and to aid her psychiatric symptoms. She used alcohol to excess for a prolonged period but eventually sought assistance and became abstinent.
Mrs Habermann lacks motivating plans for the future, feeling terror whenever contemplating the prospect of further study, such as in law or psychotherapy. She feels a sense, not only of loss, but of a void in her life, consistent with persisting symptoms of depression.
Impact of the injury upon Mrs Habermann’s future career
As earlier explained Mrs Habermann’s injury eventually led to her complete cessation of employment at Council. She had become unable to perform her employment in any capacity because of her major depressive order and associated anxiety symptoms, which resulted from the tabling of the fabricated email.
Dr Likely concluded that Mrs Habermann’s disorder and its associated anxiety symptoms are so severe that they will preclude Mrs Habermann from ever engaging in any form of remunerative employment in the future. The above-described impact of the injury upon Mrs Habermann’s life strongly supports that conclusion.
No opinion evidence was adduced as to whether Mrs Habermann’s symptoms may be materially eased in the event of her success on liability in this trial. It is the type of evidence a psychiatrist could give. Doubtless Council would have adduced such evidence if it was available.
The judgment comes at a time long removed from the commencement of the adverse consequences of the tabling. Those consequences were on-going and the above description of Mrs Habermann’s life demonstrates the lasting impact they have had upon her. The impact upon her has been entrenched for a long time. Dr Likely opines she will not engage in future remunerative employment. In the face of such evidence there is no foundation for an inference that the impact of this tort upon her will be so materially eased by this judgment or the further passage of time that she will likely regain the capacity for paid employment, let alone the capacity to re-establish her past career. Nor was such an inference sought.
The devastating impact upon Mrs Habermann represents a significant reversal of her employment trajectory.
She was well qualified for remunerative employment. She was awarded the degrees of Bachelor of Commerce with Honours and Bachelor of Information Systems in 2003, in her home state of Tasmania. She subsequently worked in marketing and sales management in Melbourne before successfully applying for the position of Procurement Officer with Cook Shire Council. She moved to Cooktown to take up that position in 2006, aged 28.
During Mrs Habermann’s employment with Council she performed her professional roles very capably, implementing improved governance systems. Her performance was positively reviewed.[75] She also successfully pursued further studies, achieving degrees of Master of Urban and Regional Planning in 2012 and Master of Professional Accounting in 2015.
[75]Ex 9.
Mrs Habermann enjoyed significant professional progression in roles of growing corporate responsibility at Council.[76] She was appointed to the position of Business Services Co-ordinator in January 2010 and her position was upgraded to that of Business Services Manager in 2012. In 2015 she was appointed to the position of Governance and Risk Manager. That trajectory powerfully supports the inference that, but for the events with which this case is concerned, Mrs Habermann had good prospects of further promotion within Council’s senior levels.
[76]Ex 12.
That inference is also supported by the evidence of Mr Cronin, the CEO to mid-2018. He testified Mrs Habermann, who had reported directly to him, was very motivated, passionate, intelligent and committed in her work. He considered she had enormous potential in her career trajectory.
Potential future significance of Mrs Habermann’s pre-existing psychiatric problems
The need for the discount for contingencies to allow for pre-existing psychiatric vulnerability
It will be recalled Mrs Habermann had a long-standing history of seeking psychiatric assistance in managing her anxiety and depression.
Council’s approach to this litigation verged upon an implicit assumption that because Mrs Habermann was a person who had a history of seeking assistance for psychiatric problems, sooner or later a stressor would have come along to diminish or destroy her income earning capacity.
Two considerations point powerfully to the contrary. Firstly, the apparent severity of the stressors triggering her recurring decompensation and seeking of psychiatric assistance in the past were of objectively unremarkable and far lesser degree than the devastating circumstances of the perpetuation in the public domain of the malevolently fabricated email. Secondly, none of the past episodes of Mrs Habermann seeking psychiatric assistance appear to have interfered with her work performance. Whatever the private impact of her psychiatric problems had been, Mrs Habermann had obviously been a highly effective employee, able to function so well in her working life that she was rewarded with progressively more senior appointments within Council. The impression arising is that, in a dynamic which is not unheard of among high-achieving professionals, Mrs Habermann had the insight to cope with her depression and anxiety by seeking assistance in managing it, thus maintaining her high functioning capacity in the work to which she was so committed. It is scarcely surprising that Dr Likely observed, despite her psychological problems, she had shown herself to be a very resilient person with respect to her work.
Dr Likely accepted the records showed Mrs Habermann was a person who went into situational psychiatric crises from time to time, depending on the stressors in her life. He accepted it is likely the past pattern would have continued, so that, quite apart from the events with which this proceeding is concerned, Mrs Habermann would have needed ongoing psychiatric assistance and medication over her lifetime.
Dr Likely acknowledged it was difficult to divide her ongoing psychological treatment needs between the consequences of the events in this case and her, in any event, underlying psychological needs. He, in effect, opined that her treatment needs deriving from the events in this case would be higher in their aftermath but would, in the long term, reduce relative to the long-term demands in any event of her pre-existing psychological vulnerabilities. He opined that, once past the age of 50, Mrs Habermann would, in any event, have required anti-depressant medication on a lifelong basis.
Those considerations will substantially moderate the assessment of Mrs Habermann’s special damages for likely future medical expenses attributable to the Council’s negligence. They will also moderate the assessment of future loss of earnings, but not nearly to the same extent. That is because, despite Mrs Habermann’s recurring need for psychiatric assistance and medication, there was no evidence that her symptoms had impaired her work capacity or performance, even in those past instances where workplace stressors had triggered her medical attendances.
In cross-examination Dr Likely explained of Mrs Habermann’s pre-existing psychiatric problems that if, hypothetically, she had presented to him with decompensation on exacerbation of her pre-existing condition, he would have expected his care of her to last for 12 to 18 months before her return to her primary care GP. That prompted this exchange in cross-examination:
[I]s it reasonable to assume that after about 12 months of treatment after August 2017, this lady was probably not so much affected by those events, but by her longstanding problems? --- I think that’s a good assumption. Yes.
In giving that answer it appears Dr Likely was agreeing on the premise that the stressors occasioning the decompensation only occurred in August 2017. As was pointed out to Dr Likely in re-examination, the tabling had occasioned continuing stressors, for instance distress experienced in engaging with her small local community. Dr Likely confirmed in re-examination that his temporal estimate related to a scenario in which the stressors which influenced Mrs Habermann had been ‘removed’. He testified it was ‘difficult, if not impossible’ to draw a line between ‘what is an ongoing stress and what has been removed’.
As earlier explained, the adverse impact of the tabling upon Mrs Habermann has been on-going. It has been so entrenched for such a long time that she is unlikely to regain her capacity for paid employment.
Her past psychiatric vulnerabilities having had no past impact upon her employment capacity, it would be unreasonable to approach the discounting of her award for loss of earnings on the premise her capacity for paid employment would inevitably have been impacted by those vulnerabilities in the future. In that sense there is a distinction from the apparent inevitability in Dr Likely’s view of her requiring medication for her depression and anxiety in the future.
Nonetheless, Mrs Habermann’s pre-existing psychiatric vulnerability left her more than ordinarily vulnerable in the future to the vicissitudes of life. That vulnerability warrants some uplift of such discounting for contingencies as the circumstances of the case would otherwise require.
Contingencies discount for past economic loss
To the present point, where the Court has the advantage of knowing what has occurred, the chances of such vulnerability manifesting to such an extent as to interfere with her income earning capacity were apparently quite low. Of course, there may have been stressors unrelated to the fabricated email having manifested in the meantime. Of course, those stressors may have been of a kind which had previously provoked the seeking of psychiatric support. But such stressors had not previously interfered with Mrs Habermann’s work. The prospect of them now having done so appears remote. That is because of the obvious drive and resilience Mrs Habermann had demonstrated over the years in successfully pursuing her work and career, along the way pursuing further study, raising a family and managing her private struggles with depression and anxiety.
Of course, it may be accepted her pre-existing psychiatric vulnerability was more likely to interfere with her income earning capacity in the event of the occurrence of some objectively traumatic life event. But there is no evidence of such an occurrence to this point, excluding the events connected with the fabricated email.
Another relatively remote prospect is that Mrs Habermann may have had a reversal to the positive trajectory of her working career. In my below reasons I find Mrs Habermann likely would have, had she not been injured, been promoted to a higher income earning position which became available after her injury. Her counsel submitted I should discount the income attributable to that likely prospect by 10 per cent on the premise she was 90 per cent likely to have been promoted. While taking the same approach, Council’s counsel submitted for an 80 per cent discounting of the additional salary that promotion would bring, diminishing to 60 per cent in assessing future economic loss. I will not take that approach.
The infrastructure of the assessment process is built upon findings on the balance of probabilities. If discounting allowance is made along the way on the basis of the lack of absolute future certainty inherent in such findings and there is then discounting for contingencies at the back end, plaintiff’s awards may be erroneously double discounted. The preferable course here is to identify the probable loss of earning capacity by reference to likely loss of earnings or prospective earnings, as best the evidence allows, and thereafter apply such discounting for contingencies as is appropriate. Often overlooked in calculating that discount is that things may have turned out even better, rather than inevitably worse, for a plaintiff in the future.
I will below find Mrs Habermann would likely have been promoted in February 2020. The reasons supporting that conclusion also make it likely that even if that did not happen then, it was likely to happen in the near future. Of course, the unpredictable slings and arrows of life, including the impact of her recurring psychiatric problems, may have caused it to not happen. They may also have caused her to cease work entirely, albeit that her demonstrated resilience in her work suggests that is unlikely in the absence of another objectively traumatic life event having occurred. However, these are considerations properly considered in arriving at an appropriate contingencies discount for past economic loss in all the circumstances of the case.
It is a significant consideration that Mrs Habermann’s vulnerability to stressors had not interfered with her work capacity prior to the events of this case. These events were objectively traumatic, materially more extreme than the apparently mundane stressors which previously triggered Mrs Habermann’s seeking of psychiatric assistance without interfering with her work. There is no evidence of any other such traumatic stressors arising in Mrs Habermann’s life since, although her private life since has been substantially different from the private life she would have been living but for these events. Moreover, because she has not been in employment with Council, there cannot be certainty as to whether there may have been other traumatic stressors arising in connection with her employment.
Some discounting allowance should be made for the possibility that other traumatic stressors may have arisen and impacted Mrs Habermann’s capacity to be able work or impacted her capacity for the levels of work performance and career progression maintained by her previously.
In my conclusion the contingencies discount for past economic loss should be 10 per cent here.
The contingencies discount for future economic loss
As to future loss of earnings, in the absence of evidence of past psychiatric problems, and in view of Mrs Habermann’s past professional commitment, I would not have favoured a greater than moderate contingency discount.[77]
[77]Note there is no starting presumption of a so-called usual or standard discount of 15 per cent – see Qantas Airways Limited v Fisher [2014] QCA 329, [74].
However, the discount should be substantial because of the added allowance of the above identified vulnerability. Council submitted for a discount of 30 per cent, with Mrs Habermann’s counsel submitting it should not be higher than that. In my conclusion such a discount appropriately allows for Mrs Habermann’s past exhibited pattern of resilience in her work, despite her psychiatric problems, as well as for the heightened possibility over such a long period, of the occurrence of traumatic stressors adversely impacating Mrs Habermann’s capacity to work or to work at her previously high level.
The appropriate contingencies discount of future loss of earning capacity is 30 per cent.
General damages will be $49,650
The process of assessing general damages is regulated by the Workers Compensation and Rehabilitation Act 2003 (Qld) and the Workers Compensation and Rehabilitation Regulation 2014 (Qld).
Section 306O of the Act requires that if general damages are to be awarded, the court must assess an injury scale value (‘ISV’) on a scale of 0 to 100 to be calculated by reference to the general damages provisions prescribed in the Regulation. Section 306P requires damages to be calculated by reference to those provisions. The provisions of the Regulation, at ss 129-130, require reference to schedules within the Regulation. More particularly, sch 9 determines the relevant ISV for mental disorders by reference to a psychiatric impairment rating scale (‘PIRS’) per sch 10. The PIRS has classes of level of impairment for separate areas of functional impairment which is stipulated within sch 11. Schedule 12 provides the monetary calculation provisions to identify the relevant damages amount for the ISV.
Dr Likely’s most recent assessment of Mrs Habermann’s mental disorder in accordance with the PIRS gives the following class ratings for the following areas of functional impairment:
Self-care and personal hygiene  1
Social and recreational activities  3
Travel  2
Social functioning  2
Concentration, persistence and pace  3
Adaptation   5
Those assessments, giving a total class score of 16 are consistent with the evidence. They were not materially challenged. I understood Council to submit the eventual ISV, not this score, should be assessed to be 14. Lest I misunderstood and it was intended to be a submission that this score of 16 should have been 14, I would have rejected such a submission. That is because, while Dr Likely had not been aware of the full substance of Mrs Habermann’s other psychiatric problems in making his assessment, the evidence does not suggest they were problems of a kind which impacted the areas of functional impairment considered in sch 11. Nor was it suggested to Dr Likely that they did, the high point being that there is ‘always room to debate’ where Mrs Habermann falls on the scale of assessment. In the circumstances, I adopt Dr Likely’s PIRS assessments.
Section 6 sch 10 requires calculation of a median score on the assessments listed in ascending order, rounded up to the nearest whole number. Hence, 1, 2, 2, 3, 3, 5 gives a median score of 3. Applying that score and the total class score of 16 under the percentage impairment conversion table in s 7 sch 10, gives a percentage impairment of 17%.
Such a rating is within sch 9’s example of a mental disorder with a PIRS between 11 and 30 per cent, thus attracting an ISV range of 11 to 40. Council emphasises the need to give weight to the range moderating prospect of Mrs Habermann experiencing future difficulties in any event. It contends for an ISV of 14.
However, several considerations favour an ISV falling higher in that range. They are Mrs Habermann’s age and apparently ordinary life expectancy, her helplessness in protecting herself against the excruciating injustice of the publication of an email falsely depicting her as its scheming, racist author, and the impact of the injury upon Mrs Habermann’s life summarised above. In my assessment the appropriate ISV is 25.
Applying the relevant table in sch 12, table 7, an ISV of 25 gives rise to a calculation of general damages to be awarded in the amount of $49,650. Interest is not payable, per s 306N.
Past economic loss will be $803,794.24
The Act contemplates per s 306I that loss of earnings may be measured by economic loss due to loss of earnings or prospective earnings or the deprivation or impairment of earning capacity and prospective earning capacity. In the present case the value of Mrs Habermann’s lost earning capacity, her past economic loss, is best informed by her loss of earnings and prospective earnings.
Past economic loss excluding superannuation
It is reasonable to infer that, but for her injury, she would have continued in her employment with Council. Mrs Habermann submits she would likely have been promoted to the position of Director of Organisational Business Services, now named Chief Operating Officer. Given her positive past career trajectory with Council the likelihood of her continued promotion was high. That is particularly so in respect of positions for which she was well qualified by virtue of her experience and qualifications. The logical next step in that trajectory was her appointment to position of Director of Organisational Business Services.
Most of the fields of duty of the position of Director of Organisational Business Services were fields in which Mrs Habermann had already served Council well. She had an established record of improving Council’s management in those fields. All known indications point to her not only being well qualified but likely better qualified than any probable competition for the position. She was inevitably the best qualified potential internal candidate. She held the advantage over any external candidate of having already managed at a senior level with success at Council in most of the fields of duty of the position. The absence of evidence from Council as to the relative merit of the apparently external applicant who was appointed, or of other applicants, fortifies the inference that, but for Mrs Habermann’s injury, she would likely have been promoted to the position. For the purposes of assessing the value of her lost income earning capacity by reference to her likely loss of earnings, I will have regard to her loss of prospective earnings as if she would have been promoted.

Her past economic loss should be calculated by reference to the raised remuneration she would have experienced if so promoted, calculated inclusive of the operative remuneration commencement date of 24 February 2020 in the contract of employment of the person appointed to the position.
The relevant data for the calculation of Mrs Habermann’s loss of earnings and prospective earnings, initially reflecting the known remuneration rates of her existing contracts and subsequently those of the contracts for the position to which she would have been promoted, is:

From

To

Weeks

(rounded)

Weekly Gross

Weekly Net

Weekly Super-annuation

(% of Net)

Total Net

Total Super-annuation

23.08.17-

09.07.19

98

$2,004.08

$1,462.08

$175.45

(12%)

$143,283.84

$17,194.10

14.07.19-

23.02.20

32

$2,159.30

$1,556.31

$186.76

(12%)

$ 49,801.92

$ 5,976.32

24.02.20-

23.02.24

209

$3,404.61

$2,363.62

$283.63

(12%)

$493,996.58

$59,278.67

24.02.24-

29.08.25

79

$4,285.71

$2,834.71

$311.82

(11%)

$223,942.09

$24,633.78

Totals

$911,024.43

$107,082.87

The above total net income of $911,024.43 should be reduced by the income received in the above era of $103,268.59 and then reduced by the 10 per cent discount for contingencies:
$911,024.43 - $103,269.59 = $807,754.84
$807,754.84 x .90 = $726,979.36 past economic loss.
I assess past economic loss, not including a loss component for superannuation, in the amount of $726,979.36.
Past loss of superannuation
The above table identifies a superannuation loss of $107,082.87. It appears to be common ground that superannuation actually paid in the era to which the table relates was $21,733. I reduce the superannuation loss by that amount and apply the 10 per cent contingencies discount to it:
$107,082.87 - $21,733 = $85,349.87
$85,349.87 x .90 = $76,814.88.
In the above table I calculated lost superannuation by application of the employer percentage contribution to likely net income. Mrs Habermann submitted I should calculate lost superannuation by reference to likely gross income. That is because the superannuation payable under the relevant contracts of employment was, as is conventional, expressed as a percentage of gross salary. However, Council submits I should take the more commonly adopted approach of calculating lost superannuation by applying the employer contribution percentage to net income.
Some considerations argued by Council in support of that approach, namely the potentially adverse performance of funds and even the risk of their insolvency, are of dubious force. Their exceptional quality means that in the substantially known environment of past economic loss, they would only be relevant if the subject of evidence. In the less predictable environment of future economic loss, they appear more apt to be regarded as the type of vicissitudes which a contingencies discount can capture.
The impact of taxation upon superannuation is a more forceful consideration. The superannuation contributions here payable as before tax contributions would have fallen to be taxed on entry into Mrs Habermann’s superannuation fund. A further tax consideration is that an award of this kind accelerates access to funds which would not yet have been available, unless accessed early and taxed as a lump sum. These considerations, inherently unlikely to be eased by decreases in the future taxation of superannuation, cannot be allowed for with mathematical precision. However, the approach of applying the employer contribution percentage to net, rather than gross, income makes sufficient approximate allowance for them to give rise to a fair award for the superannuation component of past and future economic loss.
I have therefore taken that approach here.
Total past economic loss
The total past economic loss is:
$726,979.36 + $76,814.88 = $803,794.24.
Interest on past economic loss will be $97,903.30
The amount of past economic loss attracting interest should be reduced by the apparently agreed total statutory benefits of $107,437.38 and total income protection payments of $103,691, being amounts Mrs Habermann had the benefit of. The total past economic loss attracting interest is:
$803,794.24 – ($107,437.38 + $103,691) = $592,665.86.
The relevant interest rate is 4.12%, per s 306N. Mrs Habermann’s loss commenced and accumulated variably from 23 August 2017 to the present, a period of 8.019 years. It is common ground it is appropriate to halve the interest calculation to allow for it being interest on an accumulating figure. Accordingly, the interest on past economic loss is calculated as:
.0412 interest x 0.5 x $592,665.86 loss x 8.019 years = $97,903.30
There are some agreed heads of damage
The parties agree the following awards:
Past special damages (for expenses)        $24,400.93
Interest on past special damages              $3,148.29[78]
Fox v Wood   $25,784.97
Local Government Workcare expenses    $34,952.16
[78]This figure was agreed as if the judgment would be handed down several weeks earlier than now but the likely difference is so negligible that the agreed figure is adopted.
It is also agreed the refund to be deducted from the damages total is $141,721.47.
Future economic loss will be $1,436,125.22
For the purposes of calculating Mrs Habermann’s future loss of earning capacity I will adopt the net weekly income of $2,834.71 I have found she would presently be receiving but for the injury.
As to superannuation the statutory minimum is now 12 per cent. Applying that to the above net weekly income gives weekly superannuation of $340.17.
I will accordingly apply a notional weekly loss of:
$2,834.71 + $340.17 = $3,174.88
Mrs Habermann will turn 48 in three months. Considering the commitment she exhibited to her career, I will assume she would have continued working full time until age 67. That is approximately a further 19 years, which attracts a statistical multiplier of 646.2 on the 5 per cent tables for the present value of $1 per week.[79]
[79]Luntz and Harder, Assessment of Damages for Personal Injury and Death, 5^th ed, p1131.
I have found there should be a 30 per cent discount on future economic loss for contingencies.
Those figures give rise to the following calculation of future economic loss:
$3,174.88 x 646.2 x 0.70 = $1,436,125.22
Future special damages will be $25,000
It is clear on the evidence that Mrs Habermann will incur significant future expenses in the medical management of her condition. Mrs Habermann’s quantum statement dealt in detail with her likely future expenses and outlays, arriving at a claim calculated as follows:
$149.10 per week x 910 (multiplier on 5 per cent tables for remaining years of life expectancy) = $135,681.
The data underlying the estimate of weekly costs was not seriously challenged. Rather the Council correctly emphasises the effect of Dr Likely’s evidence is that, with the progression of time, a substantial component of those medical expenses would have been incurred in any event.
Mrs Habermann’s counsel acknowledges the need to significantly moderate the allowance attributable to the injury in this case and contends for an estimated global sum of $25,000. Council contends for a global sum of $15,000.
It will be recalled that Dr Likely’s evidence was qualified by the ongoing, unremoved character of the stressor which featured in this case and its contribution to Mrs Habermann’s well entrenched incapacity. Yet even if Mrs Habermann’s future expense needs related solely to this case only lasted for another three or fours years, that would attract multipliers on the five per cent tables of either 145.6 or 189.6, giving a present day value of:
$149.10 per week x 145.6 = 21,708.96 or
$149.10 per week x 189.6 = $28,269.36
The award contended for by Mrs Habermann is within that range. I deploy this example not to suggest it should provide my assessment but to bring an illustrative sense of proportion to an inherently imprecise process. Given the lasting character of this case’s stressor, the treatment needs provoked by it will likely continue well beyond the next three to four years. However, those needs will continue to coalesce, as they may already have started to do, with treatment needs that would have arisen in any event. The above example demonstrates that the award sought by Mrs Habermann presents as a reasonably proportioned attribution of her future treatment needs to Council’s negligence.
In my assessment $25,000 should be awarded on a global basis as the award for future special damages.
The total damages will be $2,359,037.64
It follows the assessment of total damages is as follows:

General damages

$     49,650.00

Past economic loss

$   803,794.24

Interest on past economic loss

$    97,903.30

Past special damages

$     24,400.93

Interest on past special damages

$      3,148.29

Fox v Wood

$     25,784.97

LGW expenses

$     34,952.16

Future economic loss

$1,436,125.22

Future special damages

$     25,000.00

Sub-Total:

$2,500,759.11

Less refund

$   141,721.47

Total:

$2,359,037.64

Orders

Damages should be awarded in the amount of $2,359,037.64. It will be necessary to hear the parties as to costs if costs are not agreed.
My orders are:
1. Judgment for the Plaintiff in the amount of $2,359,037.64.
2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 12 September 2025, out of town parties having leave to appear by videolink.

CITATION:	Habermann v Cook Shire Council [2025] QSC 214
PARTIES:	ELLANNA STORM HABERMANN (Plaintiff) v COOK SHIRE COUNCIL (Defendant)
FILE NO/S:	SC 290 of 2020
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	29 August 2025
DELIVERED AT:	Cairns
HEARING DATES:	7-10, 14-15 July 2025 (supplementary submission of Defendant received 16 July 2025)
JUDGE:	Henry J
ORDERS:	1. Judgment for the Plaintiff in the amount of $2,359,037.64. 2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 12 September 2025, out of town parties having leave to appear by videolink.
CATCHWORDS:	TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – DAMAGE AND CAUSATION – where the plaintiff was an employee of the defendant Council – where an email was fabricated in the plaintiffs name during a third party’s dispute with the defendant – where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position – where the fabricated email was tabled in parliament – where the plaintiff subsequently suffered a psychiatric injury, leaving her unable to perform her employment in any capacity – whether the tabling was a necessary cause of the plaintiff’s injury. TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – GENERALLY – where the plaintiff was an employee of the defendant Council – where an email was fabricated in the plaintiff’s name during a third party’s dispute with the defendant – where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position – where the fabricated email was tabled in parliament – where the plaintiff suffered psychiatric harm as a result of the public dissemination of the email – whether the defendant owed the plaintiff a duty of care – whether the imposition of a duty of care was precluded because the injury resulted from the conduct of third parties beyond the defendant’s control TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – REASONABLE FORESEEABILITY – where the plaintiff was an employee of was an employee of the defendant Council – where an email was fabricated in the plaintiffs name during a third party’s dispute with the defendant – where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position – where the fabricated email was tabled in parliament – where the plaintiff suffered psychiatric harm as a result of the public dissemination of the email – whether there was a foreseeable risk, prior to the tabling, that the plaintiff would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain – whether the defendant breached its duty of care. Workers Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 306, s 306I, s 306J, s 306N Workers Compensation and Rehabilitation Regulation 2014 (Qld), s 129, s 130 Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070, cited Donohue v Stevenson [1932] AC 562, applied Fraser v State Transport Authority (1985) 39 SASR 57, cited Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, applied Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, distinguished Public Transport Corporation v Sartori [1997] 1 VR 168, cited Qantas Airways Limited v Fisher [2014] QCA 329, cited State of New South Wales v Napier [2002] NSWCA 402, applied Sullivan v Moody (2001) 207 CLR 562, cited Tame v New South Wales (2002) 211 CLR 317, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, cited
COUNSEL:	J Greggery KC with B Bilic for the plaintiff R Morton for the defendant
SOLICITORS:	Organic Legal for the plaintiff Jensen McConaghy for defendant

From To	Weeks (rounded)	Weekly Gross	Weekly Net	Weekly Super-annuation (% of Net)	Total Net	Total Super-annuation
23.08.17- 09.07.19	98	$2,004.08	$1,462.08	$175.45 (12%)	$143,283.84	$17,194.10
14.07.19- 23.02.20	32	$2,159.30	$1,556.31	$186.76 (12%)	$ 49,801.92	$ 5,976.32
24.02.20- 23.02.24	209	$3,404.61	$2,363.62	$283.63 (12%)	$493,996.58	$59,278.67
24.02.24- 29.08.25	79	$4,285.71	$2,834.71	$311.82 (11%)	$223,942.09	$24,633.78
Totals					$911,024.43	$107,082.87

General damages		$ 49,650.00
Past economic loss	$ 803,794.24
Interest on past economic loss	$ 97,903.30
Past special damages	$ 24,400.93
Interest on past special damages	$ 3,148.29
Fox v Wood	$ 25,784.97
LGW expenses	$ 34,952.16
Future economic loss	$1,436,125.22
Future special damages	$ 25,000.00
Sub-Total:	$2,500,759.11
Less refund	$ 141,721.47
Total:	$2,359,037.64