Martindale v Allister
[2004] WASCA 243
•4 NOVEMBER 2004
MARTINDALE -v- ALLISTER [2004] WASCA 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 243 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:167/2000 | 22 JUNE 2004 | |
| Coram: | MALCOLM CJ MCLURE J LE MIERE J | 4/11/04 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | IAN EDWARD MARTINDALE KAREN ALLISTER |
Catchwords: | Defamation Allegation of sexual harassment by female employee about male employee Justification |
Legislation: | Equal Opportunity Act 1984 (WA) |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Adam v Ward [1917] AC 309 Beale v GIO of New South Wales (1997) 48 NSWLR 430 Devries v Australian National Railways Commission (1993) 177 CLR 472 Essey v Harding [2002] WASC 209 Fox v Percy (2003) 214 CLR 118 Horrocks v Lowe [1974] 1 All ER 662 Jones v Hyde (1989) 63 ALJR 349 Orr v Holmes (1948) 76 CLR 632 Roberts v Bass (2002) 212 CLR 1 SS Hontestroom v SS Sagaporak [1927] AC 37 Wollongong Corporation v Cowan (1955) 93 CLR 435 Daniels v Burfield (1994) 125 ALR 33 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Mulholland v Mitchell [1971] AC 666 Shorey v PT Ltd (2003) 197 ALR 410 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MARTINDALE -v- ALLISTER [2004] WASCA 243 CORAM : MALCOLM CJ
- MCLURE J
LE MIERE J
- Appellant
AND
KAREN ALLISTER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ANDERSON J
File Number : CIV1625 OF 1992
Catchwords:
Defamation - Allegation of sexual harassment by female employee about male employee - Justification
(Page 2)
Legislation:
Equal Opportunity Act 1984 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr K J Martin QC & Mr G D Robertson
Solicitors:
Appellant : In person
Respondent : Freehills
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Adam v Ward [1917] AC 309
Beale v GIO of New South Wales (1997) 48 NSWLR 430
Devries v Australian National Railways Commission (1993) 177 CLR 472
Essey v Harding [2002] WASC 209
Fox v Percy (2003) 214 CLR 118
Horrocks v Lowe [1974] 1 All ER 662
Jones v Hyde (1989) 63 ALJR 349
Orr v Holmes (1948) 76 CLR 632
Roberts v Bass (2002) 212 CLR 1
SS Hontestroom v SS Sagaporak [1927] AC 37
Wollongong Corporation v Cowan (1955) 93 CLR 435
(Page 3)
Case(s) also cited:
Daniels v Burfield (1994) 125 ALR 33
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
Mulholland v Mitchell [1971] AC 666
Shorey v PT Ltd (2003) 197 ALR 410
(Page 4)
1 MALCOLM CJ: This is an appeal from a judgment of Anderson J dated 26 September 2000 by which the learned Judge dismissed with costs the appellant's action for damages for defamation against the respondent. The appellant was not represented at the hearing of the action or on the appeal.
2 In his action the appellant alleged that the respondent defamed him by accusing him of sexual harassment in the workplace.
3 The background, as found by the learned trial Judge, was that until August 1990 the appellant was employed by BP Refinery Kwinana Pty Ltd, the company's analytical laboratory at Kwinana. At the time his employment ceased his title was Leading Laboratory Officer. The respondent, Ms Karen Allister, commenced employment with the company as a laboratory assistant in mid-1980. She was then about 20 years of age. She started in the production laboratory, but in about mid-1982 she transferred to the analytical laboratory. It was there she came into contact with the appellant. When the respondent first commenced in the analytical laboratory, that was a different section from the one in which the appellant worked, but the two sections were close together and the appellant and the respondent became quite well acquainted. After four or five months the respondent underwent a routine transfer into the appellant's section within the analytical laboratory. The appellant was responsible for parts of the respondent's training. They worked quite closely together until October 1983, when the respondent transferred out of the analytical laboratory to the production laboratory. They did not work together after that.
4 As the learned Judge found, some seven years later, in mid-1990, a female laboratory assistant by the name of Ms Plummer gave notice of her intention to resign. The reason which she gave to the company was that she was being sexually harassed by the appellant. When this came to the notice of the laboratory manager, Mr Hamill, he undertook some investigations. It was one of his responsibilities as laboratory manager to investigate and deal with complaints of sexual harassment in the laboratory. He made an appointment to see Ms Plummer at her home in company with the senior employee relations manager, a Mr Brown. This meeting occurred on 19 July 1990. Ms Plummer told them certain things. Mr Hamill then held a meeting with the appellant on 19 July 1990 in the presence of Mr Brown and a union representative, Mr Wieffering. Mr Hamill informed the appellant about Ms Plummer's allegations, which included allegations that the appellant had placed his hands on her hips from behind, referred to her as having "lovely lips" and telling her that she deserved a kiss for something she had done for him. Mr Brown informed
(Page 5)
- the appellant that the allegations made by Ms Plummer were regarded seriously by the company and that a note would be placed on his file after the appellant had been given an opportunity to discuss the contents of the note. This was, in effect, a warning.
5 The learned Judge found that shortly after this incident a Mr Rodgers, who was the respondent's shift supervisor in the production laboratory, told Mr Hamill something concerning the respondent and the appellant. Mr Hamill determined to speak with the respondent. This he did on 1 August 1990 in company with Mr Brown and the respondent told them of certain things which, she said, had happened when she was working with the appellant in 1982 and 1983. Mr Hamill asked her to provide a written statement. She agreed to do so.
6 Following Mr Hamill's meeting with the respondent, he arranged to speak with the appellant in the presence of Mr Brown and a union shop steward, Mr Jefferson. A meeting took place on 1 August 1990 at which Mr Hamill informed the appellant that, since Mr Hamill had spoken to him in connection with the complaint by Ms Plummer, other allegations had been made against the appellant by another female employee. Mr Hamill informed the appellant that these allegations included that he had patted the female employee on the bottom many times and that on one occasion he had tried to kiss her and that when she resisted, he had said unpleasant things to her, including that she had led him on and was a "teaser". Mr Hamill did not tell the appellant that this female employee was the respondent. He informed the appellant, however, that because there was now more than one allegation of sexual harassment against him, his employment with the company was suspended pending further investigation.
7 A few days later, on 6 August 1990, the respondent gave Mr Hamill her written statement. On the basis of the contents of that statement the appellant's employment with the company was terminated. The appellant then commenced his action against the respondent by a writ issued on 20 May 1992. While the appellant had been represented for a period prior to the hearing, he represented himself at the hearing of the action.
8 His cause of action in defamation was pleaded in the statement of claim as follows:
"4 On a date unknown between 26 July 1990 and 13 August 1990 the [respondent] wrote and published of and concerning the [appellant] to officers or employees of the
(Page 6)
- company or alternatively spoke and published of and concerning the [appellant] in the way of his occupation and in relation to his conduct therein to officers or employees of the company during the period the following words:
- 'While at work, mostly during weekend overtime,
(a) Ian Martindale came up behind me and when I turned around he grabbed me, tried to put his arms around me and said to give him a kiss.
(b) Ian Martindale kissed me.
- (c) Ian Martindale touched me.
(d) Ian Martindale put his hand on my waist as I walked out of a door in front of him.
(e) Ian Martindale would come up behind me and tap on the bum.
(f) Ian Martindale asked me out a few times.'"
- 5 The said words meant and were understood to mean that the [appellant] had made unwelcome sexual advances to the [respondent] and was therefore not a fit and proper person to exercise the supervisory aspects of his position."
9 It was also pleaded that the words complained of were published in written form to six named people and were published in spoken form to 11 named people. The learned trial Judge, however, found that the only written publication made by the respondent was the publication in the form of her written statement which was published by her to Mr Hamill. That statement, so far as material, was in the following terms:
"To John Hamill.
This statement is written to the best of my ability to remember the incident of sexual harassment that was directed at me by Ian Martindale, while I was working in the analytical lab 8 years ago …
(Page 7)
- It was when we were working together on the weekends that Ian started touching me. He used to put his hand on my waist as I walked out of a door in front of him, and he would come up behind me and tap me on the bum. After this happened a few times I started to get annoyed and suspicious of him, and I realised that it wasn't a coincidence that our weekend overtime was always together. When he used to hit me on the bum I would turn around and give him a dirty look but I never said anything because he always did it in a joking manner. This went on for 2-3 months but it wasn't continuous, mainly on the weekend …
It was while we were working together in the Gas analysis lab that he asked me out a few times, but it was always done in such a manner that I didn't know if he was serious or not … [I] declined the offer to go out. This did not stop him from asking me. In the meantime the touching was still going on …
The worst incident in my mind was while I was in the analytical lab balance room, he came in. I turned to face him and my back was to the bench and he grabbed me and tried to put his arms around me and he said to give him a kiss."
10 So far as the defamatory content of the statement was concerned, the learned Judge concluded in [13] of his reasons that:
"This statement, written by the [respondent], contains the defamatory words set out in par 4 of the statement of claim with the exception of the words 'kissed me'. I am satisfied, therefore, that the [appellant] has proved that there was a written publication of the words pleaded in par 4 of the statement of claim with the exception of those particular words. I am satisfied also that to a person who knew what Mr Hamill knew about the general circumstances, the words meant (and were understood by Mr Hamill to mean) that the [appellant] had made unwelcome sexual advances to the [respondent] and was therefore not a fit and proper person to exercise the supervisory aspects of his position of leading laboratory officer at the company's refinery. The [appellant] has proved the innuendo pleaded in par 5 of the statement of claim."
(Page 8)
11 So far as the extent of the publication was concerned, the learned Judge was not satisfied that the respondent published the written statement to anyone other than Mr Hamill. His Honour commented that:
"… the [respondent's] statement may have been, and probably was, seen by other people, but I am not satisfied that the [respondent] herself published it to anyone but Mr Hamill."
12 So far as the extent of the publication of the spoken words, the learned Judge concluded in [15] that:
"… the words pleaded or the substance of them were spoken by the [ respondent] to Mr Hamill and Mr Brown, but I am not satisfied that those words or the substance of them were spoken by the [respondent] to anyone else on the occasion pleaded in the statement of claim; that is, on a date between 26 July 1990 and 13 August 1990. There is evidence that the defendant had made some form of disclosure to Mr Rodgers some time previously and perhaps also to one or two fellow employees, but those were different occasions and furthermore it is not proved that on those occasions the words pleaded in the statement of claim or the substance of them were the words that were spoken to these other people. As to the need for precise proof see Collins v Jones [1955] 1 QB 564 at 571; Gatley on Libel and Slander (9th ed) par 26.11; Saunders v Bate156 ER 1259."
13 In her defence the respondent pleaded that the defamatory imputation carried by the words was true in substance. As his Honour held, the gist of the defamation was that the appellant made unwelcome sexual advances to the respondent of the kind and in the circumstances described. The issue at the trial was whether that allegation was true. In [17] - [20] his Honour commented on the evidence of the respondent and the appellant respectively as follows:
"The [respondent] gave evidence that the [appellant[ had done each of the things recounted in her interview with Mr Hamill and Mr Brown and set out in her written statement. Her evidence was given firmly, clearly and in a matter-of-fact manner. The direct manner in which she responded to questions and the level of detail she was able to give with respect to the various occasions about which she was asked satisfied me that she was speaking of encounters with the [appellant] which she actually recalled and that her recollection of those encounters
(Page 9)
- was reliable. She was cross-examined by the [appellant], but her evidence-in-chief remained intact. The cross-examination did not shake her testimony or impugn her credit.
On the other hand, there was a number of respects in which the [appellant's] evidence was less than satisfactory. He often preferred to answer questions indirectly than by directly responding to them. His denials often contained lengthy and unconvincing explanations as to why he could not have behaved in this or that way. For example, the [appellant] was asked in cross-examination whether he habitually made physical contact with the [respondent] by brushing past her. His response to this was to claim that it would have been physically impossible for him to do so. The following passage is taken from transcript page 170:
'It's physically impossible for you to brush past someone?
---I have enough trouble walking in a straight line.
What, you say you are incapable of brushing past people?
---Deliberately brushing past somebody, yeah. The deafness I referred to earlier on, which is one of the reasons why I wanted my medical file from BP - - -
How does your deafness prevent you - make you not able to brush past people?---Well, basically the problem I have with my deafness is the nerve damage from the cochlea [sic] - probably thought the specialist, which BP actually sent me to, nerve damage from the cochlea which basically means that I've got no balance organs in this side at all. If I shut my eyes I will fall over. I have inordinate trouble walking in a straight line.'
The [respondent] gave evidence that on the last occasion that she firmly rejected the [appellant's] advances he called her a 'teaser' and accused the [respondent] of leading him on. Cross-examined as to whether he had called the [respondent] a 'tease' or a 'teaser', the [appellant] denied that he had ever thought of the [respondent] in those terms. He was unable to explain how that evidence could be reconciled with statements made by him in exhibit 5 which was a letter he wrote to a member of parliament containing the following passage:
(Page 10)
- 'Sykes [the respondent] was lazy, overweight, a heavy smoker and a teaser who liked to target married men especially at social functions probably to upset their wives.'
- It was the [respondent's] evidence that many of the encounters on which her allegations against the [appellant] were based occurred while the two of them were alone in the laboratory doing weekend overtime. The [appellant] sought to discredit this evidence by insisting that little or no overtime was available for the laboratory employees in the time when the [appellant] and the [respondent] worked together. However, this evidence was contradicted by the [appellant's] own witness, a Mr David Cullen. Mr Cullen gave evidence that he was a laboratory technician in the same laboratory as the [appellant] in 1982 and 1983. Under cross-examination, he said that at the time when the [respondent] also worked in that laboratory weekend overtime was available to the staff and it was 'shared around'. Under re-examination by the [appellant], he said, in answer to the question whether 'much overtime' was worked 'at that particular stage':
'Yes, I think we did - there was testing within the chemicals part of the laboratory and I think at that stage we were doing a lot of aluminium testing on fuel oils and often we would come in on the weekend to do aluminium testing. There was a period, and I can't remember the exact years - but there was a period of time where there was quite a bit of overtime, to burn off aluminiums and then the next day complete an aluminium.'"
(Page 11)
15 The learned trial Judge accepted the appellant's evidence that at the 1982 refinery Christmas dance the respondent did behave in an over-familiar way towards the appellant and, perhaps, also towards other people at the dance.
16 His Honour went on to say in [21] that:
"The significance of that is another matter. As to the party invitation, the [appellant] said that at the conclusion of the annual Christmas ball in December 1983, the [respondent] sought to invite a number of people, including the [appellant] and his wife, to her home for a party. This evidence was corroborated by evidence in the form of a written statement by a Mr Ripley. The [respondent] gave evidence that she did invite a number of people to her house for a party, including Mr Ripley and his wife. She denied inviting the [appellant]. I think she probably did extend her invitation to the [appellant] and his wife. Once again, the significance of this is another matter. In the first place, I do not consider that these incidents reflect adversely on the [respondent's] credibility as to the main matters in issue in this case. That she flirted with the [appellant] after drinking too much at a Christmas dance and that she extended an invitation to the [appellant] while inviting other workmates, including the [appellant's] friend, Mr Ripley, to a party at her home after the 1983 Christmas ball is relevant to the question whether in 1982 and 1983 she was being sexually harassed by the [appellant] in the workplace, but is not decisive of it. The inference which the [appellant] seeks to have me draw from the fact that on these two occasions the [respondent] behaved towards the [appellant] in the manner described is that the [respondent's] complaints concerning his behaviour towards her are untrue. I am not able to draw that inference."
17 The reasons expressed for that conclusion were that it is a matter of ordinary experience that the consumption of alcohol tends to lower inhibitions and people who have had too much to drink can behave in a way in which they would not when sober. His Honour commented that the fact that the respondent behaved in a flirtatious manner towards the appellant at the 1982 end-of-year workplace festivities did not, of itself, cast doubt on her allegations that earlier that year he had behaved towards her in the manner which she disclosed to the representatives of the company. As his Honour further said in [21]:
(Page 12)
- "By the time of the 1983 party invitation, she had not had contact with the [appellant] for some time. The invitation appears to have been extended at the end of the evening of the ball to a number of persons. The fact that the [appellant] and his wife were included is not of any great significance. At this time, the [respondent] had long since decided not to complain about the [appellant's] conduct. As has been noted, she had moved to a different laboratory and was no longer working with him. I think it is likely she had simply decided to let bygones be bygones and that it was in that spirit that the [appellant] and his wife were included in the invitation to go back to the [respondent's] place after the ball. It is true that she made a denial in evidence that she had included the [appellant] and his wife in the invitations which she issued at that time, but I do not believe the denial was made dishonestly. The events which she was being asked to recall were not central to the matters which are now in issue and happened some 17 years ago."
18 Notwithstanding those conclusions, the learned Judge went on to say that the fact that the respondent did behave in a friendly manner towards the appellant at the end of 1982 and again at the end of 1983 caused him "to scrutinise the … [respondent's] evidence with care and to look at other evidence to see if her evidence was supported". In this context his Honour referred to a number of matters. First, there was the unconvincing nature of the denials made by the appellant to the suggestion that he behaved inappropriately towards the respondent. Secondly, there was other evidence which tended to reinforce the respondent's testimony that her disclosures to Mr Hamill and Mr Brown concerning the appellant's conduct were true. Thirdly, when Mr Hamill first spoke to the appellant about the matter, Mr Hamill did not mention the respondent's name. Fourthly, both Mr Hamill and Mr Brown gave evidence that it was the appellant who volunteered the respondent's name as being one female employee he could think of in connection with the allegations. As his Honour rightly commented, the fact that the respondent came to the appellant's mind when he was being confronted about allegations of sexual harassment was consistent with there having been something unusual in their relationship when they had worked together.
19 Fifthly, there was evidence from a secretary employed in the laboratory at the material time, a Ms Coulthard, that she frequently observed the appellant and the respondent together. Ms Coulthard's evidence was that "… it always appeared to me that he was really trying
(Page 13)
- to chat her up". By that she said she meant that he was "getting a bit too familiar with her, I thought, yes". Her evidence was that the respondent appeared to be "uncomfortable with his attention". She also said that the respondent "fairly frequently" complained to her that "she didn't really know what to do about it". Ms Coulthard also gave evidence that she observed that the respondent appeared to "get quite upset from time to time".
20 So far as Ms Coulthard's evidence was concerned, the learned Judge concluded in [23] of his reasons:
"I have no hesitation in accepting Ms Coulthard's evidence. She was an impressive witness, has not worked at these premises for some time and has no reason to take sides in this particular matter. Ms Coulthard's evidence tends to rebut the [appellant's] evidence that he paid no particular attention to the [respondent] while they were working together and that at all times relations between himself and the [respondent] were at a professional level and entirely harmonious and amicable. Ms Coulthard's evidence reveals that the [appellant] was attracted to the [respondent] at that time, contrary to his denials."
21 It was for these reasons that the learned Judge found that the disclosures which the respondent made to Mr Hamill and Mr Brown were true, with the consequence that the defence of justification was made out and the appellant's action was dismissed.
22 Grounds 1 and 2 of the grounds of appeal contend that the learned Judge was wrong "in accepting" that "BP had fully investigated the allegations". In my opinion, no such finding was made by the learned Judge. The issue at the trial was not whether the allegations were fully investigated by BP, but whether the allegations which were made by the respondent were false and defamatory or true. In this context, the evidence was such that it was clearly open to the learned Judge to accept the evidence of the respondent and reject the evidence of the appellant. The learned trial Judge had the opportunity of hearing the evidence of the various witnesses, being able to observe their demeanour and assess the credibility of their evidence, including, in particular, the evidence of the respondent. There is nothing to suggest that the respondent was otherwise than an honest and truthful witness, as the learned trial Judge found.
23 In addition, so far as grounds 1 and 2 contended that the learned Judge was wrong in finding that BP had fully investigated the
(Page 14)
- allegations, not only was no such finding made, but the learned Judge specifically ruled that the nature of BP's own investigations of the allegations were not relevant. This was because it was for the learned trial Judge himself to determine the facts on the basis of the evidence given at the trial. For these reasons there is no substance in grounds 1 and 2.
24 Ground 3 contends that the learned trial Judge was wrong in accepting the evidence of Mr David Cullen that the appellant worked overtime with the respondent many times because BP would have:
"(a) had payroll records to show who and when each person worked overtime and for how long, in order to pay correct wages and for workers' compensation procedures.
(b) Witnesses available to BP to verify these false allegations as all employees working after normal hours have to report to the Shift Laboratory Supervisor (a person such as Mr Rodgers) prior to commencement of and upon ceasing any overtime work. This would have been very noticeable as it was very rare to have more than one person from any one section working overtime together, at that time."
25 Ground 4 contends that:
"The learned Trial Judge was wrong in accepting that I worked overtime with Respondent (Defendant) on Mr Cullen's testimony in that
(a) Mr Cullen stated that the only overtime that he could remember was Aluminium analysis where one person went in one day to start the analysis and another person went in the next day to finish the analysis off. No mention of 2 people working together as alleged.
(b) Mr Cullen stated that overtime was shared around. Overtime was voluntary and was only done when it was convenient to each particular person. Some workers in that section never did any overtime in all the years that I worked with them. A lot of the overtime that was available was on a 'callback' basis whereby someone would be phoned at home, by the shift workers, to come in as required. One of the reasons that the Respondent (Defendant) did so much overtime was that she lived
(Page 15)
- close to the Refinery, whereas I lived 40 kms away in Armadale."
26 The respondent's evidence was that many of the encounters upon which her allegations against the appellant were based occurred while the two of them were alone in the laboratory during weekend overtime. The appellant sought to discredit this evidence by insisting that little or no overtime was available for laboratory employees when he and the respondent worked together. As his Honour noted in [20], this evidence was contradicted by the appellant's own witness, Mr Cullen, who was the laboratory technician in the same laboratory as the appellant in 1982 and 1983. He said that at the time when the respondent also worked in that laboratory weekend overtime was available to the staff and it was "shared around". His evidence was that, in answer to the question whether "much overtime" was worked "at that particular stage" was:
"Yes, I think we did - there was testing within the chemicals part of the laboratory and I think at that stage we were doing a lot of aluminium testing on fuel oils and often we would come in on the weekend to do aluminium testing. There was a period, and I can't remember the exact years - but there was a period of time where there was quite a bit of overtime, to burn off aluminiums and then the next day complete an aluminium."
27 For these reasons I consider that grounds 3 and 4 fail.
28 Ground 5 contended that the learned trial Judge did not take into account the inconsistencies of the respondent's statement dated 6 August 1990 in that she stated:
"(a) 'the atmosphere became extremely tense', yet all the co-workers who testified and Dr Mickiewicz stated that the relationship within the section was friendly, co-operative and harmonious at both work and social functions; and that he was very proud of the teamwork that existed in the section;
(b) that we worked overtime many times together, yet neither she nor BP could supply any details of this and the appellant gave evidence that he did not work any overtime with the respondent and the reasons for that;
(Page 16)
- (c) the respondent gave evidence that she and the appellant worked overtime together, yet the appellant and his wife both testified to receiving numerous telephone calls at their home from the respondent when she was working overtime at BP and Mrs Martindale said that 'it seemed like every weekend' so often did the respondent telephone the appellant who gave evidence that in April 1983 he received four calls from her between 1.30 pm and 8 pm on a Saturday;
(d) the respondent stated that she was harassed for a period of 18 months, yet in December 1982 after working with her for 8 months she asked the appellant for a dance at a social function and 12 months later, after only 5 or 6 weeks on shift, she asked the appellant and his wife to a party at her house which were not the actions of someone who had been 'harassed out of her job'; and
(e) the respondent said that she told Mr Rodgers about the allegations about 1½ to 2 years after she commenced working with him, but Mr Rodgers testified that it was 7 or 8 years after he commenced working with her, at the same time that allegations by Plummer surfaced."
29 Ground 6 contended that:
"The learned Trial Judge did not take into account the inconsistencies of the Respondent's (Defendant's) testimony in that she stated:
(a) she first went to compulsory lectures on the Equal Opportunity legislation in 1984 yet her friend and co worker Mr Rodgers stated that he first went to them 7 or 8 years after he started working with the Respondent (Defendant) which would make that 1989 or 1990. The legislation was not Gazetted until 1984 and was not introduced at BP until the late 1980s, as stated by Mr Rodgers and many others that I have spoken to.
(b) she stated, under oath, that she never asked my wife and I to a party, at her home, whilst at the BP Refinery dance in December 1983. Yet Mr Ripley, my wife and I all stated that she did. This was only 5 or 6 weeks after she went
(Page 17)
- on shift with Mr Rodgers after alleging that I had harassed her from April 1982 until October 1983."
30 As has already been seen, the respondent's evidence was that the appellant had done each of the things recounted in her interview with Messrs Hamill and Brown and set out in her written statement. The learned Judge was entitled to form the view which he did about her credibility, having regard to the manner in which she responded to questions and the level of detail she was able to recall with respect to the various encounters with the appellant. His Honour, having had the opportunity to see an observe the respondent in the witness box noting that cross-examination left her evidence unshaken and did not impugn her credit, was entitled to accept her evidence.
31 By contrast, it is apparent that the learned trial Judge was entitled to find that the appellant's evidence was not always satisfactory. Upon a reading of the transcript, it is clear that on a number of occasions he answered questions indirectly rather than responding to them directly. There were occasions upon which his denials contained lengthy and unconvincing explanations about his behaviour. In particular, he was unable to explain in cross-examination how an aspect of his evidence could be reconciled with statements made by him in a letter which he had written to a member of Parliament. The appellant's evidence, which insisted that little or no overtime was available for the laboratory employees in the time when he and the respondent worked together, was directly contradicted by the appellant's own witness, a Mr David Cullen, as I have already noted.
32 In my opinion, the grounds of appeal, while not easy to understand, do not challenge in a direct way the basic findings of fact by the learned trial Judge that the appellant had made unwelcome sexual advances to the respondent, as described by her in her written statement, the account originally given to Messrs Hamill and Brown and repeated in her evidence at the trial.
33 Dr Mickiewicz, who was employed in a supervisory capacity, had no recollection of the respondent asking him to go on shift in 1983. Although he was the supervisor of both the appellant and the respondent, he did recall that the appellant and others used to come up from the analytical laboratory to the chemical laboratory and talk to the respondent from time to time. He was not, however, the only one. Many people did the same.
(Page 18)
34 Dr Mickiewicz recollected telling the appellant on many occasions to go back to his own laboratory because he had a propensity to like to gossip. He remembered on one occasion that he came to the respondent's workplace and told the appellant to go back to his lab and stop disturbing her during her work. There was not, however, any animosity. There was a very good relationship which was productive, constructive and positive.
35 Mr Ward, who was a fellow employee of the parties, gave evidence that prior to the appellant leaving BP he did not know of, see or hear of, any allegations regarding the respondent towards the appellant. The atmosphere in the analytical laboratory at the time was very friendly and "We got all along with one another". He confirmed that the respondent had pestered the appellant for a dance at the refinery dance in 1982.
36 The appellant called a Mr Fraser who was working in the production laboratory at the refinery in 1982-1983. He did not see or hear of any allegations of harassment or any animosity between the appellant and the respondent. He spent almost all of his time apart from tea breaks in the production laboratory, which was in another building south of the laboratory in which the respondent worked. The two laboratories were separated by a small roadway. The appellant and the respondent were working in the analytical laboratory and the gas analysis laboratory. The chemical laboratory used to operate "almost independently" of the others. People did move from one laboratory to another during the course of the day, but not very often. Mr Fraser gave evidence that the respondent used the smokers' mess room at the production laboratory end.
37 As previously stated, Mr Cullen also worked in the analytical laboratory as a technician in 1982 and 1983. During the period in question up until July 1990 Mr Cullen did not hear any allegations of harassment. He did not observe any animosity or difficulty between the appellant and the respondent. Mr Hamill gave evidence that he was the refinery laboratory manager in July 1990. His evidence was relevant in the context that the appellant pleaded that the date upon which the words complained of were spoken and the written words were published was 6 August 1990 during business hours at the refinery.
38 Mr Hamill gave evidence that he received a statement from the respondent on 6 August 1990 which he investigated. There were other matters which were being investigated at the same time.
39 When the statement was sought to be admitted into evidence, objection was taken by counsel for the respondent on the ground that the
(Page 19)
- precise words pleaded in par 4 of the statement of claim did not appear in the statement.
40 Subsequently, on 18 March 1997 par 4 of the statement of claim was amended to plead that:
"On a date unknown between 26 July 1990 and 13 August 1990 the [respondent] wrote and published of and concerning the [appellant] to officers or employees of [BP] or alternatively spoke and published of and concerning the [appellant] in the way of his occupation and in relation to his conduct therein to officers or employees of the company during the period the following words:
'While at work, mostly during weekend overtime,
(a) Ian Martindale came up behind me and when I turned around he grabbed me, tried to put his arms around me and said to give him a kiss.
(b) Ian Martindale kissed me.
(c) Ian Martindale touched me.
(d) Ian Martindale put his hand on my waist as I walked out of a door in front of him.
(e) Ian Martindale would come up behind me and tap me on the bum.
(f) Ian Martindale asked me out a few times.'
41 Particulars pursuant to O 20 r 13A:
"(i) The [appellant] repeats the allegations contained in pars 1, 2 and 3 hereof and says that such matters were well known to the persons to whom the said words were published; and
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- (ii) The said words were published to officers or employees of the company and were published by way of complaint about the conduct of the [appellant]."
42 The appellant also contended that the respondent had given evidence that she and the appellant worked overtime many times together, yet neither she nor BP could supply any details of the relevant occasions. The appellant said that he did not work any overtime either with or without the respondent. The appellant's evidence was that all the overtime records at that time were paper based and all the times worked and duties performed were written down on an overtime sheet for Dr Mickiewicz to examine prior to payments being made by the payroll office. This would all have been typed by Christine Coulthard (then Christine Morley) and delivered by her to the payroll office. Ms Coulthard worked in the analytical and gas laboratory at BP between 1982 and 1986. She worked in the same laboratory as the appellant and the respondent as the secretary to both Dr Mickiewicz and a Mr Gary Haywood. She was on friendly terms with the respondent. She said that the appellant came into her office from time to time and talked to her. She commented that:
"I tried to be good-mannered about it but we weren't really friends. We didn't really have anything in common and, you know, if I was busy, it was hard to sort of sit there having somebody chat to you if you haven't got the time."
43 Her observation was that it appeared to her that the appellant was "trying to chat her up", that being a reference to the respondent. Ms Coulthard's evidence was that the respondent told her that she was uncomfortable about the appellant's "attentions and she didn't really know what to do about it. She could get quite upset from time to time." This happened fairly frequently. The respondent subsequently applied to transfer out of the analytical laboratory to another position.
44 A statement, made by Ms Coulthard to the personnel services officer of BP dated 13 August 1990, was tendered under s 79C of the Evidence Act 1906 (WA) as a statement made by a qualified witness concerning matters about which that witness had personal knowledge, at the time the statement was made, and who had been called as a witness. The document was admitted as containing material which was relevant to rebut any allegation of recent invention. Ms Coulthard estimated that the respondent had worked in the particular laboratory for some six to 12 months before the transfer.
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45 Evidence was given by a Mr T J Brown who was the senior personnel officer with BP from 1985 to 1987, the senior employee relations officer from 1987 to 1993, and the employee relations manager 1993 until his retirement in 1997. Throughout that period he was responsible for personnel matters and industrial relations matters, including complaints and queries in relation to sexual harassment. His role was to hear the complaint and to investigate it in conjunction with the line manager. His role was also to recommend the appropriate action to be taken following the conclusion of the investigation. His recommendation would be made to senior management.
46 Mr Brown gave evidence that he first became involved on 16 July 1990 when the respondent told him she intended to resign because of sexual harassment by the appellant. In the course of his investigation Mr Brown interviewed the respondent and the appellant in conjunction with his line manager, Mr Hamill. He took notes at a meeting which was held on 19 July 1990 at 2.30 pm. Those present were the refinery laboratory manager, Mr Hamill, the appellant and subsequently, during the course of the meeting, a Mr Roy Wieffering who was the Australian Workers' Union representative in the laboratory at the time. The allegations made by the respondent were put to the appellant. Towards the end of the meeting Mr Brown informed the appellant that the company considered such matters very seriously; that the matter would be considered further by management; that a note would be placed on file; but he would have the opportunity to discuss the contents of such a note.
47 The reference to "such matters" referred to the matters of sexual harassment the subject of the Ms Plummer's complaint which included placing hands on her hips from behind, referring to her as having lovely lips and saying something that he had done for her deserved a kiss.
48 Following the complaint by Ms Plummer, Mr Brown became aware that allegations of sexual harassment against the appellant had been made by the respondent. As a result of a telephone call received on the previous Friday evening, Mr Brown met with the respondent on 30 July 1990 in the office of a Ms Fiona Prestedge, who was the employee relations officer and Mr Brown's immediate subordinate. The respondent was informed that there were allegations of sexual harassment that they had been told had been made by her against the appellant and that they would like her to place them on the record. The respondent was informed that they had been told that the harassment occurred at a time immediately prior to her transferring from day work to shift work.
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49 Mr Brown's evidence was that the respondent then told them that the appellant had on a number of occasions slapped or patted her on the bottom; had on at least two occasions tried to kiss her; had asked her to go out and have a drink with him; and, on one occasion in the balance room, he had grabbed hold of her and tried to kiss her, at which time she told him to "leave me alone". The appellant also said a couple of nasty things to the effect that the respondent was a teaser and had been leading him on. At that time, within approximately one week, a vacancy occurred on shift for which the respondent applied and was successful.
50 The respondent said that a short time after transferring to shift work she spoke to Frank Rodgers about why she had transferred from the analytical laboratory day job to shift work, but did not say anything to management. She also told Mr Rodgers that she had changed to shift work because of the sexual harassment that she had been subjected to by the appellant.
51 In relation to her statement that the appellant had asked her to go out and have a drink with him, the respondent's response was, "Haven't you got a wife? What would she say?" The appellant replied, "That doesn't matter. She is in hospital."
52 At the meeting Mr Brown told the respondent that these were serious allegations and that if action was to be taken, he would like the allegations put in writing so that there was no doubt in his mind or Mr Hamill's mind as to exactly what it was that she alleged. The respondent indicated that she was quite prepared to do that. The reason given to her for requiring the statement was that it may be necessary for her to give evidence about these matters.
53 Mr Brown gave evidence that he met with the appellant on 1 August 1990 in the presence of Mr Hamill and a Mr Jefferson, who was the senior AWU representative on the Kwinana Refinery site. Mr Hamill advised the appellant that another incident of sexual harassment by him against a female member of the staff occurring some years previously had been reported and substantiated to management. On that basis, the appellant was informed that the company suspended him on full pay until further notice and would contact him about the decision on his future by the end of the week. Mr Hamill outlined the details of the incidents, but did not refer to anyone by name. The appellant made reference to being kissed on his birthday and that the only person he could think of from years ago was the respondent, but that he had no recollection of anything of such a nature as outlined by Mr Hamill of the slapping on the bottom and trying
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- to kiss the respondent. At the meeting the statement made by the respondent at the earlier meeting on 30 July was "virtually repeated by Mr Hamill".
54 Ground 7 was that:
"The learned Trial Judge was wrong in finding that Mrs Coulthard had no reason to take sides when her current partner is an employee of BP Refinery, considering that BP is paying the Respondent's (Defendant's) legal fees, a very important consideration. Also Mrs Coulthard's 2 previous partners have both been BP employees."
55 The short answer to ground 7 is that the point taken in the ground was not one which was put to Mrs Coulthard by the appellant when he had the opportunity to cross-examine her. Mrs Coulthard was called on behalf of the respondent and identified a memorandum dated 13 August 1990 in which she said:
"I would like to add my comments to those already received on the above incident.
I worked in the laboratory for a number of years, and during this time I was aware of a situation that had developed because of Ian Martindale's interest in Karen Sykes who was working in the same section. I realised there was a problem because Karen and I discussed the fact that he would not leave her alone and he was very persistent in the matter. I was aware of the fact that he approached her whenever possible and she did not want his advances. Karen applied to work on shift when the opportunity presented itself, which was a fairly bold move at the time, mainly in order to remove herself from any further harassment.
Ian was also a nuisance to me personally. He would frequently try to engage me in conversation and I found it difficult to be forward enough to tell him to desist."
56 Mrs Coulthard's maiden name was Morley. Mrs Coulthard confirmed that the contents of her memorandum were true and correct and the statement was received in evidence pursuant to s 79C of the Evidence Act 1906. Mrs Coulthard was briefly cross-examined by the appellant at the trial. She was asked when she was first aware of the respondent's allegations. Her answer was, "Not long after she became worried about it." She was asked whether she ever said anything to Dr Mickiewicz. Her
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- response was in the negative. Asked why not, her response was that it was the respondent's concern.
57 In this context, the appellant claimed to have written proof from the respondent's solicitors that BP was funding the defence. This was not a matter raised at the trial and was not relevant in the appeal.
58 The appellant also asserted by submission that Mrs Coulthard's two previous partners had been BP employees and senior managers at BP. A number of other matters were raised in the appellant's submissions which were not the subject of evidence at the trial and were inadmissible on the appeal. In my opinion, given what took place at the trial, there is no substance in ground 7.
59 Ground 8 contended that the learned trial Judge was wrong in taking into account hearsay evidence and gossip from Mrs Coulthard, yet he did not take into account the evidence of Dr Mickiewicz when their offices were next to one another, as Mrs Coulthard was Dr Mickiewicz's secretary. Dr Mickiewicz gave evidence that in 1982-1983 he was a chemist at BP. His evidence was that he did not have any complaint made to him by the respondent during the time he was in charge of the analytical laboratory. He had no complaints made to him by anyone else during the period in question. Dr Mickiewicz was unable to say what reason the respondent gave for going on to shift work in mid-1983. The assertion in ground 8 that Dr Mickiewicz came into the laboratories on a regular basis "and socialised with us but Mrs Coulthard did not" was an inadmissible attempt by the appellant to give evidence in the appeal. There is no substance in ground 8.
60 Ground 9 contended that the learned trial Judge was wrong in not taking into account the testimony of Mr Ward, Mr Ripley and Mr Cullen who all worked in that section with both the appellant and the respondent and who stated there was a very harmonious working relationship among all of the personnel in that section at work and socially, while the learned Judge accepted the evidence of Mrs Coulthard who saw very little of their working time together.
61 Mr Ward gave evidence that prior to the appellant leaving BP he was not aware of the allegations made by the respondent concerning the appellant. He described the working atmosphere in the analytical laboratory as "very friendly. We all got along with one another." He first heard of the allegations after the appellant left BP. He recalled the respondent pestering the appellant for a dance at the refinery dance in
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- 1982. Mr Ward gave evidence of a conversation with the respondent and two other employees about a complaint by a fellow employee named Rhonda when the respondent said that she was on Rhonda's side and that the appellant should be given the sack because of sexual harassment.
62 Mr Ward gave evidence that he did not see any animosity between the appellant and the respondent during the time they were working together in the analytical laboratory.
63 So far as Mr Ripley is concerned, he was not called as a witness.
64 Mr Cullen gave evidence for the appellant at the trial. He was a laboratory technician working in the same laboratory as the appellant and the respondent. His evidence was that he did not see any animosity or signs of sexual harassment between the appellant and the respondent. His evidence was that the respondent did not give him any indication why she went on to shift work. During the period up to July 1990 Mr Cullen did not hear of any allegations of harassment. Mr Cullen could not recall working together with both the appellant and the respondent on a weekend, but said there could have been times when he worked with one or other of them on a weekend. There was a particular time when much overtime was being worked.
65 In my opinion, there is no substance in ground 9 and it was not demonstrated that the learned Judge was in error in accepting the evidence of Mrs Coulthard.
66 Ground 10 was that the learned trial Judge was wrong in not taking into account the evidence of Mr Fraser and Mr Wieffering, who worked elsewhere in the laboratory and had their breaks with the respondent and another female, a Ms Dennison, who worked in the laboratory as a sample collector and was a close friend of the respondent. It was also contended that it was "incredible" that no-one else in the whole laboratory of some 30 people where gossip travels very quickly saw or heard anything about any sexual harassment, apart from Mrs Coulthard.
67 Mr Fraser gave evidence that in 1982-1983 he spent most of his time as a BP employee working in the production laboratory and what was known as the CFR test house. He said he had seen quite a lot of the people in the various other laboratories at tea breaks and lunchtime. He was not aware of any allegations of harassment and did not observe any animosity between the appellant and the respondent. Mr Fraser's evidence was that the production laboratory was at one end of the laboratory complex and that the gas analysis was at the other end. He spent most of
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- his time in a separate building known as the "CFA" further south of the production laboratory. In cross-examination Mr Fraser agreed that it was difficult for him to comment on how the people down at the end of the building, where the analytical laboratory, was got on with each other.
68 In re-examination Mr Fraser agreed that the respondent used the smokers' mess room at the production laboratory end and that he saw the respondent down there on a regular basis in tea breaks.
69 Mr Wieffering was the union representative in or around July 1992. His evidence was that he had not heard of the respondent's allegations against the appellant before that time. He did not see any animosity from the respondent towards the appellant at that time or at any earlier time. His evidence was that he first heard of the allegations when he was accompanying the appellant to the meeting at Mr Hamill's office.
70 In my opinion, there is no substance in ground 10.
71 Ground 11 contended that the learned trial Judge was wrong in his finding that the appellant was evasive in his evidence when he was also trying to conduct the case after BP had dragged the case out for eight years. One can accept that the appellant found himself in a difficult and stressful situation. The learned trial Judge, however, had the opportunity of hearing the evidence and observing the witnesses as they gave it, including the appellant. The learned trial Judge clearly formed a favourable view of the credibility of the respondent as a witness. In my opinion, no adequate reason was put forward to challenge the conclusions of the learned Judge in relation to the evidence of the respondent. As has been seen, the learned Judge found that there were a number of respects in which the appellant's evidence was less than satisfactory. It is not necessary to repeat them. While accepting that the appellant found himself in a very stressful situation conducting his case without legal representation, it has not been demonstrated that the findings of fact made by the learned Judge were in error.
72 Submissions in relation to ground 11 were made about a number of matters, including allegations about the time and money extended by BP and a range of other matters which were not the subject of any evidence at the trial. These submissions may be put to one side as not bearing on the grounds of appeal.
73 Ground 12 contended that:
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- "The learned Trial Judge was wrong in taking into account the allegations relating to Ronda Plummer, when that is the subject of a separate legal action. I have a letter from Ms Plummer to the Human Rights and Equal Opportunity Commission in which she states that BP didn't believe her allegations, she has also stated that to other witnesses. I also have approximately 20 witnesses, going back almost 20 years, who will state that Plummer has a history of making up false stories."
74 It was contended in support of ground 12 that the learned Judge was wrong in taking into account the allegations relating to a Ms Rhonda Plummer, a self-confessed drug user who had bragged about causing trouble at her previous place of employment, the Department of Agriculture, which was the subject of a separate legal action.
75 As has been seen, part of the background to the present proceedings was that in mid-1990 Ms Plummer, a female laboratory assistant, gave notice of her intention to resign by reason of alleged sexual harassment by the appellant. This matter was investigated by the laboratory manager, Mr Hamill. He and the senior employee relations manager, Mr Brown, met with Ms Plummer on 19 July 1990. Ms Plummer told them certain things. As a result, Mr Hamill held a meeting with the appellant on 19 July 1990 in the presence of Mr Brown and a union representative, Mr Wieffering. This resulted in a warning.
76 The appellant says in his submission that he has a letter in his possession from Ms Plummer to the Human Rights and Equal Opportunity Commission in which she says that BP did not believe her allegations, which had been made to other witnesses and that he has statements from approximately 20 witnesses going back over 20 years, who will state that Ms Plummer had a history of making up false stories. He also alleged he had a letter from the former Human Rights and Equal Opportunity Commissioner, Ms June Williams, in which she states that Ms Plummer would not have succeeded with her complaint and that she had lodged false statements in this Court in relation to her case. None of this material was the subject of evidence at the trial and none of it was the subject of any admissible evidence on the appeal. It follows that there is no substance in ground 12.
77 Ground 13 contended that the learned trial Judge was wrong in accepting Mr Hamill's evidence in that:
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- (a) despite relying on his notes, Mr Hamill could not remember a meeting with Mr Brown and Mr Lucev, a solicitor at Freehills, the respondent's solicitors, in Perth on 13 August 1990, yet Mr Brown remembered the meeting quite clearly; and
(b) Mr Hamill was very evasive as to the whereabouts of the appellant's file that had been lost by BP when these had been requested by the appellant to be kept available on many occasions and Mr Brown stated there was no reason for the appellant's file to be moved.
78 Shortly after the appellant had been given the warning to which I have referred, as the learned Judge found, Mr Rodgers, the appellant's shift supervisor, told Mr Hamill something concerning the respondent and the appellant. This led to the interview on 1 August 1990 in company with Mr Brown, which led in turn to the provision of the written statement.
79 At the trial the appellant called Mr Hamill, who was a senior Human Resources Advisor at the BP refinery and who was the refinery laboratory manager in July 1990. He gave evidence that on 6 August 1990 he received a statement from the respondent. As a result, he investigated her allegations. Mr Hamill was asked whether he looked at the appellant's medical file, which Mr Hamill denied. He was also asked whether he had a look at the appellant's personnel file. The learned trial Judge, however, ruled that Mr Hamill's evidence about the nature of BP's own investigation into the allegations was not relevant. In discussion with the learned Judge, it appeared that Mr Hamill was not at the BP Refinery in 1982-83. In my opinion, Mr Hamill's evidence was simply irrelevant.
80 The statement by the respondent, relied upon in these proceedings as the relevant publication referred to in the statement of claim, was the statement taken from the respondent. Because Mr Hamill had been called as a witness by the appellant, counsel for the respondent was entitled to cross-examine him, which he did, regarding what were the matters of complaint which the respondent raised which were later the subject of her written statement. Mr Hamill gave evidence that, by a deed of settlement dated 17 August 1990, which was exhibit 3 in the proceedings, between the Australian Workers Union, Western Australian Branch ("the Union"), the appellant and BP, it was recited that:
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- "A. Martindale was employed by BP on 3 August 1970, and is currently employed as a Leading Laboratory Officer.
B. Allegations of sexual harassment have been made by two female employees of BP against Martindale; and
C. Martindale denies the allegations of sexual harassment.
D. BP has investigated and considered the allegations of sexual harassment, and advised Martindale that they intend to terminate his services."
81 By the terms of the agreement, it was provided that BP would pay the appellant specified sums. Clause 3 of the deed provided that in consideration of the payments referred to the appellant agreed to resign from BP with effect from 17 August 1990 and to release and discharge BP from all liability, etcetera, or rights which the appellant might have against BP arising out of, from, or in connection with his period of employment with BP, excepting any matter relating to industrial diseases or workers' compensation that may or could arise from his period of employment.
82 It is of significance that the grounds of appeal did not directly challenge the basic findings of fact made by the learned trial Judge that the defence of justification had been made out because the appellant had made unwelcome sexual advances to the respondent of the kind, and in the circumstances, described in the respondent's written statement and in what she had said to Messrs Hamill and Brown.
83 In my opinion, there was ample evidence before the trial Judge on which he was in a position to assess the credibility of the respective witnesses, including, in particular, the appellant and the respondent respectively. As an intermediate appellate court, this Court will rarely interfere with findings of fact which have been made at the trial on an assessment of the credibility of the respective witnesses. In general, an appellate court will only do so where the evidence of a witness is in conflict with facts incontrovertibly established, or the decision at the trial is glaringly improbable or contrary to compelling inferences in the case: cfFox v Percy (2003) 214 CLR 118, per Gleeson CJ, Gummow and Kirby JJ, at [21 - 31].
84 In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 McHugh J adopted the comments of Lord Sumner in SS Hontestroom v SS Sagaporak [1927] AC 37 at 47 that:
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- "If his [the trial Judge's] estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."
85 In Fox v Percy (supra), Gleeson CJ, Gummow and Kirby JJ at [26] considered that cases such as Jones v Hyde (1989) 63 ALJR 349 at 351 – 352 per Brennan, Gaudron and McHugh JJ, Abalos (supra) and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and 482 – 483 per Deane and Dawson JJ were within established doctrine and served as a reminder of the "limits under which appellate Judges typically operate when compared with trial Judges".
86 So far as the appellant's apparent attempt to rely on new evidence on the appeal is concerned, the position is that a judgment regularly obtained at trial should not be disturbed by the admission of new evidence by an appellate court without some insistent demand of justice. In addition, it needs to be established that if the relevant evidence had been available and given at the first trial, it is highly likely that it would have produced the opposite result and that no reasonable diligence on the part of the defeated party would have enabled him or her to procure it. This necessarily means that the new evidence must be sufficiently credible: see Orr v Holmes (1948) 76 CLR 632 at 640; and Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444.
87 For these reasons, I consider that none of the grounds of appeal have been made out. The consequence is that the appeal should be dismissed.
88 In these circumstances it is not necessary to embark upon a consideration of the respondent's notice of contention which raises the alternative defence of qualified privilege, although it seems reasonably clear that, assuming the statement to have been defamatory, it was made on an occasion of qualified privilege in that the respondent had an interest to protect and that the persons to whom the statement was published had a corresponding interest to receive it on the authority of Adam v Ward [1917] AC 309; Horrocks v Lowe [1974] 1 All ER 662; Roberts v Bass (2002) 212 CLR 1 at 26; and Essey v Harding [2002] WASC 209.
89 MCLURE J: I agree that the appeal should be dismissed, generally for the reasons published by Malcolm CJ. However, I wish to add some comments and observations of my own.
90 The trial Judge found that the respondent had defamed the appellant in oral statements made to Messrs Hamill and Brown and shortly
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- thereafter in a written statement published to Mr Hamill. The trial Judge identified the gist of the defamatory imputation to be that the appellant made unwelcome sexual advances to the respondent of the kind and in the circumstances described by her. The trial Judge found that the disclosures made to Messrs Hamill and Brown were true and that the justification defence was made out.
91 The respondent gave evidence that the appellant had done each of the things recounted in her interview and in her written statement. The appellant gave evidence denying the allegations. The trial Judge's acceptance of the respondent's evidence depended primarily upon credibility considerations and upon his impressions of her in the witness box. In contrast, the trial Judge identified a number of unsatisfactory aspects of the appellant's evidence.
92 The appellant does not in his grounds of appeal directly challenge the trial Judge's finding on justification. However, it is clear that in at least some of his grounds of appeal he intends to do so indirectly by challenging the trial Judge's acceptance of the respondent's evidence upon which the justification finding was made.
93 The appellant has a very difficult task. It is rare for an intermediate appellate court to interfere with findings of fact at trial based on an assessment of the credibility of a witness. In general, it will only do so where the testimony of a witness is in conflict with facts incontrovertibly established, or the decision at trial is glaringly improbable or contrary to compelling inferences in the case (Fox v Percy (2003) 214 CLR 118).
94 In a large number of the grounds of appeal, the terms of which are contained in the reasons of the Chief Justice, the appellant relies on what he describes as "inconsistencies" and the trial Judge's alleged failure to take into account relevant evidence. The first alleged inconsistency relates to overtime. The respondent says in her written statement that the sexual harassment occurred, at least in the early stages, mainly on "weekend over time". The appellant said little or no overtime was available at the relevant time. The trial Judge correctly noted in his reasons that the appellant's evidence was contradicted by the evidence of Mr David Cullen, a witness called by the appellant. Based on the evidence referred to by the trial Judge, there is no proper basis to challenge the trial Judge's acceptance of the respondent's evidence on that matter. However, the appellant says the trial Judge failed to take into account, firstly, that their then common employer, BP, would have had documentary and other evidence as to who worked overtime and when which had not been adduced in evidence and, secondly, evidence from the
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- appellant and his wife that they received numerous phone calls at home from the respondent when she was working overtime on weekends. (These matters are raised in grounds 3, 4 and 5(b) and (c) of the grounds of appeal.)
95 It is the case that the trial Judge does not refer to these two matters in his reasons. However, a trial Judge is not obliged to refer in his reasons to all the evidence or submissions or make express findings on all disputed items of evidence: Beale v GIO of New South Wales (1997) 48 NSWLR 430 at 443. Further, the failure to refer to a piece of evidence does not establish that the trial Judge failed to give it consideration. However, the trial Judge should refer to evidence that is materially relevant to the central issues in dispute and resolve conflicts of evidence that are materially relevant to those issues.
96 I infer the appellant's first contention is that the trial Judge should have, but did not, draw an inference that the uncalled evidence would not have assisted the respondent's case (a Jones v Dunkel inference). In circumstances where a witness called by the appellant contradicted the appellant's own evidence concerning the availability of overtime at the relevant time and the appellant could himself have subpoenaed the documents, I see no justification in drawing a Jones v Dunkel inference. As to the evidence of the appellant and his wife concerning receipt of phone calls from the respondent, that does not materially advance the resolution of the conflict of evidence. The trial Judge set out in his reasons why he came to accept the respondent's evidence when it was in conflict with the appellant's.
97 The appellant also contends the trial Judge failed to take into account what he describes as inconsistencies in the respondent's written statement, as well as the evidence of specified witnesses (grounds 5, 9 and 10). What the appellant means by inconsistencies is five assertions in the respondent's written statement (two of which relate to overtime and have already been addressed) that were allegedly inconsistent with evidence given by other witnesses. The first of the remaining matters is the respondent's statement to the effect that the atmosphere at work became extremely tense after an incident in which the appellant tried to kiss her and called her a "tease" and a "bitch" when she rebuffed his advances. Her evidence was that when a shift vacancy became available after this incident, she applied for and obtained a position away from the appellant.
98 A number of co-workers, including Dr Mickiewicz, Mr Ward, Mr Cullen, Mr Fraser and Mr Wieffering, gave evidence about the work
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- environment. The evidence is set out in the reasons of the Chief Justice. None of these witnesses provided support for the respondent's description of the atmosphere as very tense.
99 The trial Judge does not refer to, or make any explicit finding about, the atmosphere. He was not in error in that regard. It is difficult to assess the extent of any real conflict. Outsiders' perceptions of tension, as a matter of common experience, vary according to their proximity to and knowledge of the source of the tension. In addition, it is unclear when the incident occurred. The issue was peripheral.
100 The second matter concerns an alleged failure to take into account the consistency of the allegations of unwanted sexual advances with the fact that thereafter the respondent asked the appellant for a dance at a work social function and later invited the appellant and his wife to a party at the respondent's house. The trial Judge did have regard to these matters. He dealt with them comprehensively. There is no substance to the allegation that he failed to take them into account.
101 Finally, the appellant refers to the respondent's comment in her written statement that she told a co-worker, Mr Rodgers, about the allegations one or two years after she commenced working with him, whereas Mr Rodgers' evidence was that he became aware of the allegations seven or eight years after he commenced working with the respondent. The conflict does not reflect on the honesty of either witness. The issue was peripheral and did not require resolution.
102 In ground 6 the appellant contends the trial Judge failed to take into account alleged inconsistencies in the respondent's testimony at trial concerning when she went to compulsory lectures on the equal opportunity legislation and her denial that she had asked the appellant and his wife to a party at her home. The trial Judge referred to the second matter and said he did not believe the denial was made dishonestly because the events she was being asked to recall were not central to the matters in issue and happened a long time ago. The same can be said of evidence relating to the Equal Opportunity Act 1984 (WA) which is entirely peripheral.
103 Finally, I wish to comment on ground 12. The appellant contends that the trial Judge was wrong in taking into account the allegations relating to Ronda Plummer. The trial Judge referred to those allegations in recounting the necessary factual background to the issues that arose for determination in the action. There is no proper basis to suggest the trial
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- Judge had regard to that evidence in determining whether the respondent's allegations were true. In that regard, the trial Judge relies on three matters: the manner and content of the respondent's evidence at trial; the unsatisfactory aspects of the appellant's evidence (including his inability to reconcile his evidence in cross-examination that he had ever thought of the respondent as a "tease" with his letter to a member of Parliament describing her in those terms); other evidence which tended to reinforce the respondent's testimony, in particular, when the appellant was confronted by Messrs Hamill and Brown with the respondent's allegations without naming her, the appellant volunteered the respondent's name as being one employee he could think of in connection with the allegations; finally, the trial Judge accepted Ms Coulthard's evidence from which he concluded that the appellant was attracted to the respondent.
104 None of the matters raised in the grounds of appeal provide a proper basis for interfering with the trial Judge's findings of fact based on his assessment of the respondent's and Ms Coulthard's credibility as witnesses.
105 LE MIERE J: I have had the advantage of reading in draft the reasons for judgment of Malcolm CJ. I agree that the appeal should be dismissed for the reasons stated by his Honour the Chief Justice.
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