Martindale v Allister - [2000] WASC 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MARTINDALE -v- ALLISTER [2000] WASC 233

CORAM: ANDERSON J

HEARD: 7-9 AUGUST 2000

DELIVERED : 26 SEPTEMBER 2000

FILE NO/S: CIV 1625 of 1992

BETWEEN: IAN EDWARD MARTINDALE
Plaintiff
AND
KAREN ALLISTER
Defendant

Catchwords:

Defamation - Allegation of sexual harassment - Justification - No point of principle

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr J R B Ley

Solicitors:

Plaintiff: In person
Defendant: Freehill Hollingdale & Page

Case(s) referred to in judgment(s):

Collins v Jones [1955] 1 QB 564
Saunders v Bate 156 ER 1259

Case(s) also cited:

Adam v Ward [1917] AC 309
Harris v Warre (1879) 4 CPD 125
Horrocks v Lowe [1984] 1 All ER 662
Rainy v Bravo (1872) LR 4 PC 287
The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited & Anor [1931] SASR 244
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107

ANDERSON J: In this defamation action, the plaintiff alleges that the defendant defamed him by accusing him of sexual harassment in the workplace.
Until August 1990, the plaintiff was employed by BP Refinery Kwinana Pty Ltd in the company's analytical laboratory at Kwinana. Latterly, his title was Leading Laboratory Officer. The defendant commenced employment with the company as a laboratory assistant in mid‑1980. She was then of the age of about 20 years. She started in the production laboratory, but in about mid‑1982 she transferred to the analytical laboratory. There she came into contact with the plaintiff. When the defendant first commenced in the analytical laboratory, she was in a different section from the plaintiff, but the two sections were close together and the plaintiff and the defendant became quite well acquainted. After four or five months, the defendant underwent a routine transfer into the plaintiff's section within the analytical laboratory. The plaintiff was responsible for parts of the defendant's training. They worked quite closely together until October 1983, when the defendant transferred out of the analytical laboratory to the production laboratory. The parties did not work together after that.
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 plaintiff. 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 plaintiff on 19 July 1990 in the presence of Mr Brown and a union representative, Mr Wieffering. Mr Hamill informed the plaintiff about Ms Plummer's allegations, which included allegations that the plaintiff 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 the plaintiff 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 plaintiff had been given an opportunity to discuss the contents of the note. In effect, the plaintiff was given a warning.
Shortly after this, a Mr Rodgers, who was the defendant's shift supervisor in the production laboratory, told Mr Hamill something concerning the defendant and the plaintiff. Mr Hamill determined to speak with the defendant. This he did on 1 August 1990 in company with Mr Brown and the defendant told them of certain things which, she said, had happened when she was working with the plaintiff in 1982 and 1983. Mr Hamill asked her to provide a written statement. She agreed to do so.
Following Mr Hamill's meeting with the defendant, Mr Hamill arranged to speak with the plaintiff in the presence of Mr Brown and a union shop steward, Mr Jefferson. This meeting took place on 1 August 1990.
At this meeting, Mr Hamill informed the plaintiff that since Mr Hamill had spoken to the plaintiff in connection with the complaint by Ms Plummer, other allegations had been made against the plaintiff, by another female employee. Mr Hamill informed the plaintiff 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 plaintiff that this female employee was the defendant.
Mr Hamill informed the plaintiff that, because there was now more than one allegation of sexual harassment against him, his employment with the company was suspended pending further investigation.
A few days later, on 6 August 1990, the defendant gave to Mr Hamill her written statement.
In due course, the plaintiff's employment with the company was terminated. The plaintiff then commenced this action by writ issued on 20 May 1992. When the matter came on for hearing before me on 7 August last (this being more than eight years after the action was started), the plaintiff was unrepresented. He appeared in person and presented his own case.
The plaintiff's cause of action is pleaded in the statement of claim in the following terms:
"4On a date unknown between 26 July 1990 and 13 August 1990 the first defendant wrote and published of and concerning the plaintiff to officers or employees of the company or alternatively spoke and published of and concerning the plaintiff 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 pat me on the bum.
(f)Ian Martindale asked me out a few times.
5.The said words meant and were understood to mean that the plaintiff had made unwelcome sexual advances to the defendant and was therefore not a fit and proper person to exercise the supervisory aspects of his position."
In the particulars of this pleading, the plaintiff alleged that the words complained of were published in written form to six named people and were published in spoken form to 11 named people.
I find that the only written publication made by the defendant was the publication in the form of her written statement and that that statement was published by her to Mr Hamill. The written statement is exhibit 2 and is in the following relevant terms (it is a lengthy statement and there is no need to set it all out):
"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 …
-
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."
This statement, written by the defendant, 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 plaintiff 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 plaintiff had made unwelcome sexual advances to the defendant 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 plaintiff has proved the innuendo pleaded in par 5 of the statement of claim.
As to the extent of the publication of the written statement, I am not satisfied that the defendant published the written statement to anyone other than Mr Hamill. I am not satisfied that it was published by the defendant to any of the other persons particularised, namely, Lucev, Morton, Rodgers, McBride, Plummer and West. Of course, the defendant's statement may have been, and probably was, seen by other people, but I am not satisfied that the defendant herself published it to anyone but Mr Hamill.
As to the extent of the publication of the spoken words, I am satisfied that the words pleaded or the substance of them were spoken by the defendant to Mr Hamill and Mr Brown, but I am not satisfied that those words or the substance of them were spoken by the defendant 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 Bate 156 ER 1259.
In her defence, the defendant pleads that the defamatory imputation carried by the words is true in substance. The gist of the defamation is that the plaintiff made unwelcome sexual advances to the defendant of the kind and in the circumstances described and the question is whether that allegation is true.
The defendant gave evidence that the plaintiff 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 plaintiff which she actually recalled and that her recollection of those encounters was reliable. She was cross‑examined by the plaintiff, 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 plaintiff'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 plaintiff was asked in cross‑examination whether he habitually made physical contact with the defendant 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 defendant gave evidence that on the last occasion that she firmly rejected the plaintiff's advances he called her a "teaser" and accused the defendant of leading him on. Cross‑examined as to whether he had called the defendant a "tease" or a "teaser", the plaintiff denied that he had ever thought of the defendant 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:
"Sykes [the defendant] 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 defendant's evidence that many of the encounters on which her allegations against the plaintiff were based occurred while the two of them were alone in the laboratory doing weekend overtime. The plaintiff sought to discredit this evidence by insisting that little or no overtime was available for the laboratory employees in the time when the plaintiff and the defendant worked together. However, this evidence was contradicted by the plaintiff's own witness, a Mr David Cullen. Mr Cullen gave evidence that he was a laboratory technician in the same laboratory as the plaintiff in 1982 and 1983. Under cross‑examination, he said that at the time when the defendant also worked in that laboratory weekend overtime was available to the staff and it was "shared around". Under re‑examination by the plaintiff, 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."
It appeared to be a main part of the plaintiff's case that the defendant flirted with him on one occasion and invited him and his wife to a party at her house on another occasion. The flirting incident was at the refinery Christmas dance in December 1982. The plaintiff gave evidence that during that function the defendant "pestered" him to dance with her which he refused to do. He said the pestering culminated in the defendant grabbing him by the arm. He gave evidence that the next day the defendant apologised to him for her conduct. The defendant was cross‑examined about this and admitted that she had tried to get the plaintiff to dance with her and that she had later apologised to him. Her explanation was that she had had too much to drink. I accept the plaintiff's evidence that at the 1982 refinery Christmas dance the defendant did behave in an over‑familiar way towards the plaintiff and perhaps also towards other people at the dance. The significance of that is another matter. As to the party invitation, the plaintiff said that at the conclusion of the annual Christmas ball in December 1983, the defendant sought to invite a number of people, including the plaintiff 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 defendant 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 plaintiff. I think she probably did extend her invitation to the plaintiff 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 defendant's credibility as to the main matters in issue in this case. That she flirted with the plaintiff after drinking too much at a Christmas dance and that she extended an invitation to the plaintiff while inviting other workmates, including the plaintiff'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 plaintiff in the workplace, but is not decisive of it. The inference which the plaintiff seeks to have me draw from the fact that on these two occasions the defendant behaved towards the plaintiff in the manner described is that the defendant's complaints concerning his behaviour towards her are untrue. I am not able to draw that inference. It is a matter of ordinary experience that consumption of alcohol tends to lower inhibitions and people who have had too much to drink can behave in a way which they would not when sober. The fact that the defendant behaved in a flirtatious manner towards the plaintiff at the 1982 end‑of‑year workplace festivities does not, of itself, cast doubt on her allegations that earlier that year he had behaved towards her in the manner which she later disclosed to the company representatives. By the time of the 1983 party invitation, she had not had contact with the plaintiff 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 plaintiff and his wife were included is not of any great significance. At this time, the defendant had long since decided not to complain about the plaintiff'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 plaintiff and his wife were included in the invitation to go back to the defendant's place after the ball. It is true that she made a denial in evidence that she had included the plaintiff 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.
Still, the fact that the defendant did behave in a friendly (the plaintiff would say over‑friendly) manner towards the plaintiff at the end of 1982 and again at the end of 1983 has caused me to scrutinise the defendant's evidence with care and to look at other evidence to see if the defendant's evidence is supported.
I have already mentioned the unconvincing nature of the denials made by the plaintiff to the suggestion that he behaved inappropriately towards the defendant. There is other evidence which tends to reinforce the defendant's testimony that her disclosures to Mr Hamill and Mr Brown concerning the plaintiff's conduct were true. When Mr Hamill first spoke to the plaintiff about the matter, Mr Hamill did not mention the defendant's name. Both Mr Hamill and Mr Brown gave evidence that it was the plaintiff who volunteered the defendant's name as being one female employee he could think of in connection with the allegations. That the defendant came to the plaintiff's mind when the plaintiff was being confronted about allegations of sexual harassment is consistent with there having been something unusual in their relationship when they had worked together - something which caused the plaintiff to think of the defendant in that context. There was evidence from a secretary employed in the laboratory at the material time, a Ms Coulthard, that she frequently observed the plaintiff and the defendant together. She said "it always appeared to me that he was really trying to chat her up, I thought" (t/s 272). By that, she said she meant that he was "getting a bit too familiar with her, I thought, yes" (t/s 272). Her evidence was that the defendant appeared to be "uncomfortable with his attention". She gave evidence that the defendant "fairly frequently" complained to her that "she didn't really know what to do about it". Ms Coulthard's evidence was that she observed the defendant appearing to "get quite upset from time to time". 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 plaintiff's evidence that he paid no particular attention to the defendant while they were working together and that at all times relations between himself and the defendant were at a professional level and entirely harmonious and amicable. Ms Coulthard's evidence reveals that the plaintiff was attracted to the defendant at that time, contrary to his denials.

I find that the disclosures which the defendant made to Mr Hamill and Mr Brown were true. The defence of justification is made out. It follows that the plaintiff's action must be dismissed.