Potter v Gympie Regional Council - [2022] QSC 9

SUPREME COURT OF QUEENSLAND

CITATION:

Potter v Gympie Regional Council [2022] QSC 9

PARTIES:

RONALD POTTER

(plaintiff)

v

GYMPIE REGIONAL COUNCIL

(defendant)

FILE NO/S:

BS 12923 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

10 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15, 16, 17, 18, 19 and 23 February 2021

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1.   The Claim should be dismissed.

2.   That the parties provide submissions as to costs within seven days.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – where the plaintiff seeks damages for breach of contract and negligence – where the plaintiff was suspended from work pending an investigation – where the plaintiff was cleared of allegations of serious misconduct, but findings of misconduct and poor management were made – where the plaintiff alleges he suffered a psychiatric injury as a result of negligent conduct in relation to the suspension – whether the defendant owed the plaintiff a relevant duty of care

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – whether a duty of care is excluded – whether any duty of care is extended to include a duty to provide adequate support, lifting the suspension post investigation and keeping the plaintiff informed of the investigation – whether the defendant owed the plaintiff a duty to only suspend the plaintiff’s employment if to do so was a lawful and reasonable direction and the criteria in the defendant’s discipline procedure were met – whether the defendant was obliged to comply with its procedure as it was a lawful and reasonable direction – whether the defendant owed the plaintiff a duty of care during investigation and suspension including a duty to provide a safe system of work

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – whether it was reasonably foreseeable that the plaintiff would suffer a psychiatric injury – whether the plaintiff’s psychiatric injury was the result of a breach of a duty of care by the defendant

Enterprise Bargaining Agreement for the Cooloola Shire Council
Gympie Regional Council Certified Agreement 2018

Local Government Act 2009 (Qld) s 197
Local Government Industry Award 2010
Local Government Regulations 2012 (Qld) ss 279, 282, 283
Public Sector Ethics Act 1994
Queensland Local Government Officers’ Award 1998
Work Health and Safety Act 2011 (Qld) s 19, 247
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305C, 305D, 305E

Australian Telecommunications Commission v Hart (1982) 43 ALR 165, cited
Avenia v Railway and Transport Health Fund Limited [2017] FCA 859, considered
Barber v Somerset County Council (2004) 1 WLR 1089
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v

Bou Najem (2009) 239 CLR 420, cited
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, considered
Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited
Eaton v Tricare (Country) Pty Ltd [2016] QCA 139, cited
Erickson v Bagley [2015] VSCA 220, cited
Downe v Sydney West Area Health Service (No. 2) (2008) 71 NSWLR 633, considered
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, cited
Gogay v Hertfordshire County Council [2000] IRLR 703, considered
Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62, cited
Govier v Uniting Church in Australia Property Trust [2017] QCA 12, considered
Hayes v State of Queensland [2017] 1 Qd R 337, considered
Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919, cited
Hunkin v Siebert (1934) 51 CLR 538, cited
Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64, cited
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, considered
Lewis v Heffer [1978] 1 WLR 1061, cited
McCabe v Cornwall County Council & Ors [2004] UKHL 35, cited
Meandarra Aerial Springs Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd [2013] 1 Qd R 319, cited
Moshirian v University of New South Wales [2002] FCA 179, cited
Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471
Peebles v Work Cover Queensland [2020] QSC 106, considered
Promnitz v Gympie Regional Council [2015] ICQ 11, cited
R v Darling Island Steverdoring and Lighterage Co Ltd ex parte Halliday and Sullivan (1938) 60 CLR 601, cited
Robertson v State of Queensland [2021] QCA 92, considered
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403, cited
Rucker v Stewart [2014] QCA 32, cited
State of New South Wales v Paige [2002] NSWCA 235, considered
Strong v Woolworths Limited (2012) 246 CLR 182, cited
Sullivan v Moody (2001) 207 CLR 562, cited
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, cited
The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103
Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd (2005) 222 FCR 465, cited
Waddell v Mathematics.com.au Pty Ltd [2013] NSWSC 142, cited
Walters v Hanson [2020] QSC 216, cited
Woolworths Limited v Perrin [2016] 2 Qd R 276, cited
Wyong Shire Council v Shirt (1980) 146 CLR 40, cited
Yapp v Foreign and Commonwealth Office [2013] EWHC 1098, considered

COUNSEL:

J Kimmins for the plaintiff
R Morton for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff
Jensen McConaghy Lawyers for the defendant

Contents
Introduction
Outline of issues
Background Facts
People Involved
Employment
Staff Survey 2013
Meeting of 25 March 2014
Meeting of 18 June 2014
Meeting of 30 June 2014
Post 30 June 2014 meeting
Meeting of 21 July 2014
After the meeting of 21 July 2014
Letter of Allegations and meeting with Mr Wilkinson
Finding as to 30 July meeting
Delivery of Investigation Report and events up until letter of 22 January 2015

Evidence as to Mr Potter’s mental state post 21 July
Mr Potter’s evidence
Evidence of Mr Potter’s wife

Findings as to credibility and reliability
Legal Principles
Duty of care
Breach of duty
Alleged Breaches Arising out of 21 July 2014 – Suspension

Meeting of 22 January 2015
Causation
Damages

Conclusion
Introduction
[1]The plaintiff, Mr Ronald Potter worked for the Gympie Regional Council (“the Council”) since May 2008. In 2014 he was a manager at the Council in the Local Laws Team. In mid-2014 issues were raised as to his performance as a manger arising out of a 2013 internal survey of staff. Some three weeks after a meeting as to his work performance he was suspended following a complaint being made by a staff member which the Council determined should be investigated by an external investigator. As a result of that investigation, Mr Potter was exonerated in relation to allegations of serious misconduct, but some findings of lesser misconduct or poor management were made. A further allegation was raised as a result of contact Mr Potter made with an ex-employee of the Council after he was informed of the investigation and given certain directions. Prior to Mr Potter being informed of the outcome of the investigation he suffered work stress and anxiety and could not return to work. Mr Potter claims that as a result of negligence of the Council in dealing with work performance issues and suspending him from his employment he has suffered a psychiatric injury. It is not disputed that Mr Potter has suffered a psychiatric injury. However, the Council deny that the injury was the result of any negligence of the Council. The Court must determine whether or not the Council is liable in negligence for damages suffered as a result of Mr Potter suffering a psychiatric injury.
[2]The claim of Mr Potter fails principally because while Mr Potter has suffered a significant psychiatric injury, the earliest date on which I have found that there was a foreseeable risk that Mr Potter might suffer a psychiatric injury did not arise until 14 August 2014 or to frame it in terms that the parties have, it was not until 14 August 2014 that there was a not insignificant risk of psychiatric injury to Mr Potter that the Council knew or ought to have known of. To the extent that a duty of care arose after that date I am not satisfied that either it has been relevantly breached or was causative of the psychiatric injury.

Outline of issues
[3]The disputes between the parties are far and wide involving a number of legal and factual issues. The principal issues for the Court to determine are[1]:
[1]The summary is derived from the joint list of issues in dispute provided by the parties taking account that the parties subsequently indicated that some issues no longer were required to be determined. There are a number of subsidiary issues which I have not set out. Given findings I have made it has not been necessary to address all issues.
(a)Whether any meetings took place in 2014 prior to 30 June 2014 with Mr Potter to discuss the results of a survey carried out of Council staff in late 2013;
(b)What happened at the meeting of 30 June 2014;[2]
[2]There is a dispute as to whether the meeting occurred on 30 June 2014 or 1 July 2014.
(c)What happened at the meeting of 21 July 2014;
(d)Whether allegations in relation to the meeting of 22 January 2015 in [16] of the SOC are made out;
(e)Whether there was ever a not insignificant risk of psychiatric injury to the plaintiff that the defendant knew of, or ought reasonably to have known of;
(f)If the Council owed a duty of care to Mr Potter to take reasonable care to avoid a risk of Mr Potter suffering psychiatric harm what was the content of any such duty in respect of:
(i)The conduct of a meeting by Council employees on 30 June 2014
(ii)In the suspension of Mr Potter or giving a direction that the plaintiff need not perform work on full pay on 21 July 2014;
(iii)The delivery of the investigation report to the Council on 9 or 11 August 2014;
(iv)providing adequate support during the suspension and investigation and to keep Mr Potter informed of the progress of the investigation.

(g)Did the Council breach any duty of care as pleaded in [12], [13], [14] and [15] of the SOC;
(h)Did any breach of duty cause Mr Potter to suffer psychiatric harm;

(i)Whether the plaintiff has proved that any breach of duty by the defendant was a necessary condition of the injury suffered by the plaintiff;
(j)If the suspension of Mr Potter’s employment had been lifted on or about 9 August 2014 and/or 11 August 2014 and/or if Mr Potter had been told of the results of the Aitken Report on or about 9 August 2014 or 11 August 2014, would Mr Potter have made a recovery from and/or improvement of any psychiatric condition or symptoms which he suffered as at 9 August 2014; and
(k)What is the extent of any psychiatric injury suffered and, in particular:
(i)What was the percentage of impairment resulting from the psychiatric conditions suffered by Mr Potter;
(ii)What is the extent of the plaintiff’s likely special damages which will be incurred in the future, as a result of his injury;
(iii)What is the quantification of the plaintiff’s past economic loss;
(iv)What is the impairment of the plaintiff’s earning capacity as a result of his aforesaid psychiatric injuries and whether Mr Potter has any residuary earning capacity; and
(v)What is the general quantification of the plaintiff’s damages.

[4]In consideration of whether the defendant owed any duty of care to the plaintiff there are a number of legal issues which are in dispute between the parties which include::
(a)Whether the principles of State of New South Wales v Paige (Paige)[3] and Govier v Uniting Church in Australia Property Trust (Govier)[4] apply so as to exclude a duty of care in relation to the conduct of the meeting on 30 June 2014 and/or the suspension of Mr Potter on 21 July 2014;
(b)Whether the Council could lawfully suspend Mr Potter or direct him not to attend work on 21 July 2014;
(c)Whether certain Council procedures imposed a duty upon the Council or bestowed a right upon Mr Potter; and
(d)Whether the decision of Hayes & Ors v State of Queensland (Hayes)[5] applies to extend any duty of care to include a duty to provide adequate support to Mr Potter by providing a support person, lifting the suspension post investigation and keep him informed of the progress of the investigation. The defendant contends that Hayes was wrongly decided at law, and reserves its position given that this Court, of course, is bound by a Court of Appeal decision. Given I am bound by the decision of Hayes, I will not address the arguments raised in the defendant’s submissions as to why it was wrongly decided when discussing the applicable legal principles.

Background Facts
People Involved
[3][2002] NSWCA 235.
[4][2017] QCA 12.
[5][2017] 1 Qd R 337.

Mr Potter was born on 15 May 1971. Mr Potter was employed by the defendant, the Council, since 2008.[6] In 2013 Mr Potter was working as the Coordinator for Local Laws as well as the Local Disaster Coordinator.
[6]Although he was employed with a smaller Council, which became part of the wider Gympie Regional Council, since 2003.
The Director of Finance and Community Services Directorate was Craig Young. Mike Hartley was the Director of Planning and Development until approximately one to two months prior to June 2014.
In January 2014 Mr Potter’s role was split and he remained as Coordinator of Local Laws. His immediate manager was Ian Wolff who was the Manager of Environment and Local Laws. Mark Stanton subsequently took over as Acting Director in about March 2014, in place of Mr Hartley.
The CEO of the Council in 2014 was Bernard Smith. Kylie McCrohon was the Manager of People and Organisation Development (which, for convenience, I will refer to as HR). Rowena Johnston was the Council Industrial Relations Officer.
Sharon Smith and a person to whom I will refer to as RS were Local Laws officers and members of Mr Potter’s team. Some of the matters relevant to the present case relate to the alleged disclosure of confidential information to RS, the disclosure of which the Defendant submits could have prejudicial effect. I have therefore anonymised him for the purpose of the judgement.[7]
[7]Subject to any further raising of this issue with the parties.
Heather Kelly worked with Mr Potter in the Community Services Directorate and was the Coordinator of Community Development and Facilities.
Michael Grant was a former director of Community Services until approximately 2013 and had the role of manager of Mr Potter. He and Mr Potter were also friends.
David Wilkinson is a solicitor who, in 2014, was working for Aitken Legal, the firm engaged to carrying out an investigation of the complaints against Mr Potter.
To the extent the allegations relate to the conduct of Mr Smith, Mr Stanton, Ms McCrohon or Mr Wolff there is not issue that the Council is vicariously liable for their conduct.
Employment
Mr Potter was employed pursuant to a letter of 12 May 2008 as Coordinator Compliance and Local Disaster Co-ordination Service in the Community Services Directorate of the Council.
The pleading refers to the 12 May 2008 letter being the relevant letter setting out the terms of employment, which was admitted by the Council. It was also one of the issues identified in the issues not in dispute by the parties.[8] The letter dated 12 May 2008 was not actually in evidence. Rather, the 2003 letter from the Cooloola Shire Council was admitted.[9]
[8]Paragraph 2A of the SOC.
[9]Exhibit 2. Although the defendant referred to exhibit 2 as being the 2008 letter.
In the list of issues not in dispute, it was also admitted that from 2010 the entitlements of the plaintiff in his employment were governed by the Local Government Industry Award 2010. Only the Enterprise Bargaining Agreement for the Cooloola Shire Council dated 2001,[10] and the Queensland Local Government Officers’ Award 1998,[11] were the subject of evidence.[12]
[10]Exhibit 63.
[11]Exhibit 3.
[12]The Gympie Regional Council Certified Agreement 2018 was also placed in evidence (Exhibit 58).
I have therefore assumed that the Local Government Industry Award 2010 and the letter dated 12 May 2008 do not contain any matters relevant to Mr Potter’s employment, further to the matters that have been admitted.
Staff Survey 2013
An anonymous staff survey was undertaken by the defendant in late 2013,[13] directed at the internal operations of each Directorate.
[13]Exhibit 29.
It included a review of the performance of the staff members’ particular manager. Some of the Local Laws staff which Mr Potter managed expressed some dissatisfaction with middle management of the Local Laws team. Mr Potter was a part of middle management. It was an anonymous survey, where staff merely ticked an appropriate box in response to a particular question.
It is admitted that the team managed by the plaintiff did not score well in the survey. There is some dispute, at least by Mr Potter, as to whether the dissatisfaction was internal within the team or related to his management as well. It is likely it was a combination of both. There were questions which potentially raised questions as to management, where there was significant staff dissatisfaction.
Mr Potter gave some evidence as to the survey. Mr Potter stated that he was very busy in his dual roles particularly after the floods in the Gympie area in 2011, 2012 and 2013. His role was to co-ordinate all the local government bodies to make sure that they were informed as to what was happening as a whole.
At the time of the survey, Mr Potter was managing two roles. He considered his time was dominated by the disaster management role and he attributed the staff survey results for the Local Laws team to reflect the fact that he had not been able to spend adequate time managing that team. He suggested that view was supported by his then manager Craig Young, with whom he informally discussed the survey results.
Mr Potter was dismissive of the relevance of the survey given the circumstances at the time and the fact it was anonymously completed.
In January 2014, Mr Potter had a meeting with Mr Young and Mr Smith as a result of which it was determined that his roles would be split and he would only undertake the role of Coordinator of Local Laws. Mr Potter considered that was because the two roles were too busy for him to continue in both roles. Mr Smith agreed that Mr Potter’s role in disaster management was a busy one. Mr Smith could not recall the meeting, but accepted that he could have had such a discussion. He did not recall any particular issues with Mr Potter’s performance at the time the roles were split.
As a result of the restructure, Ian Wolff became Mr Potter’s manager and Mike Hartley became Mr Potter’s director.
Mr Wolff was not aware whether the decision to split Mr Potter’s role so that he only did Local Laws, as opposed to disaster management, was in response to the survey. He stated that such a decision would have been made at a higher level of management. Mr Wolff did not recall any specific incidents that necessitated any discussion with Mr Potter about his work performance after Mr Wolff took over his supervision in 2014, prior to Mr Stanton commencing his role.
According to Mr Potter there were meetings between himself, Mr Wolff, Mr Young and Mr Hartley about the restructure. He did not accept that there were any meetings about survey results because, in his view, it was a non-issue.
There was evidence of internal staff issues in the Local Laws team in 2014, including from Ms Kelly. According to Ms Kelly, some staff commented to her that they considered that Mr Potter was treating staff differently. There was a lot of backstabbing and infighting amongst the team observed by Ms Kelly. While Mr Potter did not accept there were any issues that arose in relation to his management, he did accept there were a number of issues that arose between the staff itself, which he stated that he was trying to address in 2014.
Meeting of 25 March 2014

The defendant allege that there were two meetings with Mr Potter in 2014 prior to the meeting of 30 June 2014. Mr Potter disagreed.
Mr Potter could not recall a meeting on 25 March 2014 which discussed the survey with Mr Wolff and Mr Hartley in Mr Hartley’s room. He stated there was a meeting which included Mr Young, which discussed the transition of moving the Community Service Directorate to the Planning and Development Directorate, but he could recall no discussion about the survey at such a meeting. He could only recall a discussion with Mr Young about ways to get the staff back on track.
Mr Potter could recall a meeting on 27 March 2014, which was the Regulatory Services team meeting, which they called the team huddle. He said that it did not include a discussion about future performance, but rather its purpose was to clear the air with the staff. He recalled Mr Wolff was present at the meeting, as were other members of the Local Laws area.
According to Mr Potter, the meeting on 27 March 2014 was to discuss with staff the issues that existed in his team and to try and work out ways to move forward.
Mr Wolff was Mr Potter’s manager after the separation of Mr Potter’s roles when Mr Potter continued in Local Laws and no longer continued with Disaster Management. Mr Wolff gave evidence that he maintained a daily work diary. He referred to the diary to refresh his memory. He had some recollection of the events in 2014, although it was in some respects limited and he largely relied on his diary entries which recorded what had occurred. I accepted the evidence he gave but noted that it had limitations.
Mr Wolff had a journal entry recording the meeting of 25 March 2014 where the attendees were himself, Mr Hartley and Mr Potter. He did not recall anyone else being present. His recollection was that the meeting took place in Mr Hartley’s room. He stated that, to the best of his recollection, the meeting related to the 2013 organisational survey results, particularly the results relating to the Local Laws area. Mr Wolff could not recall the precise date when the survey would have been available to him but considers it would have been after the organisational restructure which took place in early 2014.
Mr Wolff’s recollection of the meeting on 25 March 2014 was that Mr Hartley raised the results from the survey with Mr Potter and there was a general discussion surrounding the results. He recalled that Mr Hartley advised Mr Potter to take some time and consider what he would be proposing to address some of the issues raised within the survey results. He could not recall a further meeting with Mr Hartley and Mr Potter to discuss those results.
Mr Wolff accepted that in the meeting of 25 March 2014, when the results of the survey were discussed, it could have been discussed that Mr Potter had had difficulty covering two roles at the time of the survey.
Mr Wolff recalled that the outcome of the meeting of 25 March 2014 was an acknowledgement by Mr Potter that a change was necessary to potentially address some of the results from the survey and that with not carrying out the role with Disaster Management, Mr Potter’s focus could be upon the supervision of the Local Laws area. He said Mr Hartley left it to Mr Potter to contemplate what he was going to do and how he was going to address the issues.
Mr Wolff stated that he did not go down the path of using counselling forms with Mr Potter.
I accept that a meeting occurred on 25 March 2014 between Mr Hartley, Mr Wolff and Mr Potter. Although Mr Potter did not have a recollection of the meeting, the fact that Mr Wolff was assisted by contemporaneous notes of the meeting in his diary supports the fact that such a meeting occurred. The fact that Mr Potter agreed that the team huddle on 27 March 2014 was to address issues that existed within his team gives some support to the fact that the issue had been discussed at the 25 March 2014 meeting, as does the contemporaneous reference to such a meeting having occurred in the letter of 30 June 2014. I accept Mr Wolff’s evidence that the meeting discussed the survey results and that it was left to Mr Potter to consider how he was going to address issues arising out of the staff survey. Mr Potter’s lack of recollection is explained not only due to the effluxion of time but his regarding the staff survey as a “non-issue” at least from his point of view. It was evident that Mr Potter did not regard the results as having any legitimacy.
Mr Hartley was suspended in March 2014, following which Mark Stanton became the Acting Director.
Meeting of 18 June 2014
Mr Potter did not recall a meeting taking place on 18 June 2014 with Mr Wolff and Mr Stanton to discuss the results of the survey.
Mr Stanton recalled a meeting with Mr Wolff and Mr Potter to go through the results of the survey, but not the date. Since the events of 2014, Mr Stanton had suffered a major medical event which significantly impaired his memory.
Mr Wolff had made notes of such a meeting in his diary to which he referred. He recollected that the meeting was to discuss the results of the survey.
On 18 June 2014, Mr Wolff had a journal entry of a meeting which was between Mr Potter, Mr Stanton and himself. His recollection was that there was a discussion held in the Planning Director’s office, that is Mr Stanton’s office, where Mr Stanton addressed Mr Potter in relation to the results of the survey and discussed a plan to move forward and address some of the issues that had been identified from the survey. He recalls that the discussion points were to be put in writing by Mr Stanton and Mr Potter.
Mr Wolff agreed that the meeting of 18 June 2014 was convened because of concerns Mr Stanton had with the staff survey. He could not recall that the meeting discussed other aspects of Mr Potter’s work performance and stated that the meeting was predominantly focused on the results of the survey. He did not consider it was a formal meeting as to performance management of Mr Potter. That accords with the terms of the letter of 30 June 2014.
Mr Stanton could recall seeing the results of the survey carried out in 2013.[14] He guessed that he would have seen it in the first few months that he was at the Council. He read the survey and recalled that there were issues in the Local Laws department that needed to be addressed. Based on what he saw in the survey results, he considered he should speak to Mr Potter about his work performance.
[14]Exhibit 29.
He stated that he had some recollection of the meeting on 18 June 2014 with Mr Wolff and Mr Potter. He stated his recollection was that on 18 June 2014 they went through some of the issues resulting from the survey which involved Mr Potter. He stated the concerns generally related to the management of the team.
The fact that a meeting of 18 June 2014 occurred is also supported by the letter of 30 June 2014 from Mark Stanton to Mr Potter. The opening paragraph stated:
“I wish to confirm my advice to you at our meeting held 18 June 2014 with Ian Wolff, Manager Health and Environmental & Regulatory Services concerning the results of the Organisational Survey in relation to the Local Laws Branch which was a follow up to a meeting held in March 2014 with yourself, Mike Hartley, Director - Planning and Development and Ian Wolff.”[15]
[15]Exhibit 6.
I accept that a meeting occurred on 18 June 2014 between Mr Stanton, Mr Wolff and Mr Potter which appeared to follow Mr Stanton’s taking over from Mr Hartley. I accept that the meeting was to discuss the results of the survey and to develop a plan on how to address some of the issues in the survey.
I do not accept, therefore, that the first meeting in 2014 to discuss the survey results was the meeting of 30 June 2014.[16]
[16]Mr Wolff’s diary entry stated the meeting occurred on 1 July 2014 although the letter is dated 30 June 2014. Little turns on the date although I consider Mr Wolff’s entry in his diary is more reliable.
Meeting of 30 June 2014
Mr Potter did recall the meeting of 30 June 2014 with Mr Wolff and Mr Stanton which he was asked to attend. According to Mr Potter, the meeting came out of the blue and he did not understand why they were seeking to do a performance review in relation to his management as a result of the survey.
Mr Potter was only given a couple of hours’ notice for the meeting and was not told that he could bring a support person with him to the meeting. He was not told in advance what the meeting was about.
Mr Potter described the meeting as follows:
“I walk in to Mark Stanton’s office. Mr Wolff was to my left sitting at the meeting table. Mr Stanton was at his desk as I walked in and I asked “What’s this about?” And Mr Stanton stood up and had an envelope in his hand and said as he was walking over, “I’m going to performance manage you, Ron.” And with his two fingers he threw the letter down in front of me, and then he sat down and he interlocked his fingers and crossed his legs, and he said, “I’m going on a fishing expedition,” if you will, “with the – with your staff. I’m going to interview them individually to find out what’s wrong with regards to your management.” And I – I didn’t know what to say. I was – I didn’t think I was doing anything wrong. And the letter that he gave to me outlined things that I’m already doing anyway, and I couldn’t understand why – what is different that I’m doing already, and I couldn’t understand that. And through that meeting, Mr Stanton said to me that he can be my best friend or his – or his worst enemy. And I went, “Okay.” So I didn’t know where I stood; whether he was coming after me, wanted to manage me out. I had no idea. I was just – I was just baffled to find out, you know, what’s going on. What – what’s – what am I doing wrong? Because up until Mr Stanton arrived, I was receiving accolades from the CEO, from the mayor, saying good work that I’ve done and the way I’ve managed the disasters and – so I couldn’t understand what was going on….”
Mr Potter stated that he was blown away by what Mr Stanton had said to him. Mr Potter stated that Mr Stanton’s statement that he was going on a “fishing expedition” in regard to Mr Potter’s management played over and over in his head and still does. He did not read the letter that was provided to him, other than to glance over it. He stated that neither Mr Wolff nor Mr Stanton went through the letter with him. He found the environment very aggressive. He considered Mr Stanton was assertive and rigid. The meeting left him feeling very threatened and confused.
Mr Potter had resolved to make his own investigations to find out what was wrong as a result of the meeting. He stated that as a result of that meeting, he felt very upset, threatened, confused and a bit angry because they were going to performance manage him and did not follow due process. When he had performance managed a staff member in the past, he had completed a counselling form and had to record how the performance issue was going to be managed.[17] Mr Potter felt the same way when he got home and spoke to his wife and told her what Mark Stanton had said.
[17]Exhibit 5.
It is uncontentious that no counselling forms under the Disciplinary Action Procedure were used in relation to Mr Potter.[18]
[18]Exhibit 5.
Mr Potter was cross-examined about the meeting of 30 June 2014. While he reiterated his evidence as to his recollection of what occurred, his answers were often not responsive and were framed in terms of the wrong done to him, such as to emphasise the effect of Mr Stanton’s behaviour upon him and his characterisation of Mr Stanton’s conduct as bullying and intimidating and the fact that procedure was not followed, rather than responding to the substance of what he was asked. Even though he accepted he had complained about his staff to Mr Wolff, he did not consider it was appropriate for Mr Stanton to engage in a process to find out what was wrong with his staff. While he agreed that he himself had spoken about discontent and conflicts amongst his staff, he rejected any suggestion that Mr Stanton had indicated to him on 30 June 2014 that he was seeking to interview the staff in the Local Laws - “He wanted to interview to – he was blaming me.” This was in contrast to his having agreed that he may have told Mr Wilkinson that Mr Stanton was going on a “fishing expedition” to find out why there were factions in the Local Laws Team. Mr Potter accepted that the tape of the meeting between Mr Potter and Mr Wilkinson demonstrated that when Mr Wilkinson stated that he had been told Mr Stanton was interviewing staff one on one to see what was causing the factions, Mr Potter had agreed and stated Mr Stanton was trying to get to the bottom of the problem and to determine what the “boggle” was.[19]
[19]T2-38-T2-39.
Mr Potter confirmed in cross-examination that he did not accept that there was any reason to question his management.
Mr Potter stated he was confused about what to do as a result of the meeting. He claimed that he could not speak to Mr Wolff as his line manager to clarify what was required because he had been at the meeting and Mr Potter did not think he could trust him and felt he was part of the problem.
Mr Potter stated that as this was the first time his management had ever been questioned, it hit him like a freight train.
Mr Wolff gave evidence that on 1 July 2014 there was a meeting where the letter of 30 June 2014 was passed from Mr Stanton to Mr Potter. He could recall a general discussion in relation to the letter, predominantly between Mr Stanton and Mr Potter. He said he offered Mr Potter his full support to assist in achieving work expectations. His recollection was the meeting ended fairly cordially. He believed Mr Stanton handed the letter to Mr Potter. He had no recollection of Mr Stanton throwing a letter across the table at Mr Potter. He considers that if that had occurred, he would have recollected it. His recollection was that Mr Stanton was professional in his dealings. He could not recall raised voices or inappropriate language. He could not recall other details of the meeting.
While Mr Wolff agreed in cross-examination that he had to refer to his notes for the purposes of accuracy, he did not recall Mr Stanton in the 30 June 2014 meeting, being anything other than professional. He stated that he recalled being in the meeting and agreed it occurred in Mr Stanton’s office. Mr Wolff agreed he was seated at the table separate from Mr Stanton’s desk when Mr Potter entered. He could not recall that Mr Stanton was seated at his work desk. He recalls that Mr Potter sat down at the table where Mr Wolff was seated when he entered. He stated that he could not recall Mr Stanton having the letter of 30 June 2014 at the meeting, nor could he recall in the level of detail discussed in relation to the contents of the letter. He later clarified in re-examination that there was a letter for the 30 June 2014 meeting, but not the 18 June 2014 meeting.
Mr Wolff could not recall Mr Stanton saying to Mr Potter that he was going to performance manage him, that he was going on a “fishing expedition” with regards to the management of the staff and was going to staff individually to find out about the problems, nor could he recall Mr Stanton saying to Mr Potter “I can be your best friend or your worst enemy”. He stated that those words may have been used, but he could not recall that level of detail.
Mr Wolff disagreed that the meeting was a performance management type meeting. Rather, he said it was a discussion regarding the results of an organisational survey as they related to the Local Laws area.
Mr Wolff stated that Mr Potter was an extroverted and enthusiastic individual before he was disciplined. He agreed that after Mr Potter was handed the letter of 30 June 2014, his demeanour changed, such that he was potentially “down in the dumps”. Mr Wolff agreed that Mr Potter’s concerns about his performance would have been a contributing factor.
Mr Stanton could recall a meeting where he gave Mr Potter the letter of 30 June 2014. He stated it would have been normal practice for Mr Potter to be requested to attend the meeting. He agreed that the meeting occurred in his office, that Mr Wolff was sitting at the informal table. He stated he was sitting at the table with him. He stated that it was not his habit to have meetings with staff with him sitting at his desk. He accepted that prior to the commencement of the meeting he could have gotten up from his desk and walked over to the informal table. He stated that he would have been holding on to the letter and he would have placed the letter on the table, and moved it across to Mr Potter. Mr Stanton did not have a specific recollection of this and based it on how he normally operated. He did not recall throwing the letter on a table.
As to the meeting to discuss the 30 June 2014 letter, Mr Stanton only remembered parts of the conversation but stated that:
(a)As to whether he told Mr Potter that it was a performance management issue, Mr Stanton agreed that he said to Mr Potter the words “I am going to performance manage you Ron” at some point during the meeting. Mr Stanton stated that he was trying to explain to Mr Potter that the 30 June 2014 letter was the commencement of the performance management process;
(b)He did not recall using the words “fishing expedition” at the meeting, but thought he had used the phrase at another meeting. He commented that it was an inappropriate phrase to use. He stated that he was trying to convey that he was chasing all of the available information. He recalled he stated that he intended to interview all staff;
(c)He did recall having a conversation along the lines of the fact that he could be Mr Potter’s best friend or his worst enemy. He stated that he explained to Mr Potter he could be his best friend by providing guidance and assistance, but if that was not going well, he would end up being somebody who was prepared to take action. Given that his impression of the Council was that they did not have a strong track record in performance management of employees, he wanted Mr Potter to understand that he was used to being in a position where he would take action to ensure work performance was delivered;
(d)Mr Stanton did not accept that he had his fingers in front of him interlocked because that was not his habit. Rather, he considers they would have been in his lap, one over the other. Nor was it Mr Stanton’s habit to place his hands over his stomach.
Mr Stanton said that he considered that performance management was necessary not only on the basis of the staff survey, but from comments from other staff which reinforced there was validity in what was being reported in the staff survey. He did not agree that it was inappropriate to rely on survey results which were at least six months old. He said the results were not likely to have changed significantly, although he accepted he had not been at the Council for that six month period.
Findings
It is alleged that at the meeting Mr Stanton exhibited the following behaviour described as “intimidating, threatening, overbearing and/or bullying”:[20]
(a)Mr Stanton threw the letter of 30 June 2014 from himself to the plaintiff on the table in front of the plaintiff;
(b)He said words to the effect of “I’m going to performance manage you Ron and I’m going on a fishing expedition with regard to your management of staff” and “I can be your best friend or your worst enemy and I’m going to interview each of the seven staff individually to find out the problems”;
(c)Mr Stanton had his fingers locked together in front of his sternum while speaking to the plaintiff;
(d)Mr Stanton had been sitting at his desk about a metre to the plaintiff’s right; and
(e)Mr Stanton spoke with an assertive tone and did not engage in “small talk”.
[20][7] of the SOC.

The plaintiff submits that Mr Potter is the only one who has a clear recollection of what occurred at the meeting, as opposed to Mr Wolff and Mr Stanton and his version should be accepted.
There is common ground in relation to a number of matters that were said by Mr Stanton, at least between Mr Stanton and Mr Potter, which Mr Wolff could not recall but accepted that they were said. However, there are a number of points of demarcation. Generally, I preferred the evidence of Mr Wolff and Mr Stanton where the versions deviated. Their versions had some support from extraneous evidence, such as the terms of the letter of 30 June 2014 which was a contemporaneous document. I find that Mr Potter, while generally honest, had a coloured recollection infected by his rejection of the survey results raising any legitimate issue about his management of his staff. Mr Potter’s evidence demonstrated that he saw the whole meeting of 30 June 2014 as being unjustified and unjust and that it indicated management were out to get him, a belief which appears to have only escalated over time. The distortion of his recollection is demonstrated by his evidence that Mr Stanton’s reference to the fishing expedition was not in the context of him saying he would get to the bottom of things, whereas he stated that was what he understood when he spoke to Mr Wilkinson. It is further demonstrated by his evidence that this was the first time the survey results were discussed as raising issues with his management.
I am not satisfied that Mr Stanton threw the letter of 30 June 2014 across the table at Mr Potter but rather pushed it across the table. Mr Wolff does not recall that occurring. Further, contrary to his description in Court, the tape of Mr Potter’s meeting with Mr Wilkinson reveals that Mr Potter had told Mr Wilkinson that Mr Stanton had handed him the letter. Given its proximity in time to the actual events, I consider it is the more accurate version of what occurred.[21]
[21]T4-2-T4-3; Exhibit 64.
I accept that it is likely that Mr Stanton did say he was going to “performance manage” Mr Potter. While Mr Wolff did not recollect those words being used, Mr Stanton accepts it is likely he would have used such words.[22]
[22]T4-84; T5-52.
Although Mr Stanton stated he did not use the words “fishing expedition” in relation to that particular meeting, he accepted he did use the words in other meetings, which he stated was an inappropriate turn of phrase to refer to the fact that he would chase all the relevant information. I find it is likely that in the meeting of 30 June 2014 he did say he was going on a “fishing expedition” with Mr Potter’s staff to interview them individually to find out what was wrong, but not that he said that it was “…to find out what is wrong with regards to your management”. Mr Stanton stated he would have advised Mr Potter that it was his intention to interview all the staff. As I stated above, Mr Stanton’s recollection of events is significantly impaired. However, his recollection is consistent with what Mr Potter relayed to Mr Aitken. That is also given some support by the fact that there is evidence Mr Stanton did interview staff members, such as Ms Smith. It also is consistent with the letter written by Mr Stanton of 30 June 2014 which stated:
“I confirm that the results of the survey are unsatisfactory and do not demonstrate a standard of management and leadership that is acceptable to Council. I acknowledge however that you are not solely responsible for the outcomes of the survey and that there is a need for further action with the Local Laws Branch both individually and as a team.”[23]
[23]Exhibit 6.
I also find that Mr Stanton did say to Mr Potter that he could be his “best friend or his worst enemy.” However, I find that Mr Stanton said those words in the context that Mr Stanton explained that they were used. Mr Stanton accepted that he would have used those words to emphasise that he was going to take action, to indicate that he could be Mr Potter’s best friend by providing guidance and assistance but if it was not going well, he could end up being somebody who would be prepared to take action. While I consider the use of such words were ill-chosen and inappropriate and could be regarded as intimidating by Mr Potter, I do not consider, in the context of the overall meeting, that they were bullying or aggressive.
I am not satisfied that Mr Stanton sat with his fingers interlocked across his chest. While I have taken into account that Mr Stanton has suffered a significant medical episode since 2014, I accept Mr Stanton’s evidence in that regard that it was not his habit to have his fingers interlocked across his chest. I accept Mr Stanton did not engage in small talk. I find however, that while Mr Stanton was firm and direct in what he said to Mr Potter, he was professional. That accords with Mr Wolff’s recollection. It is given some further support by the fact that Ms Kelly found him to be a reasonable man and quite personable in her interactions with him, although given the difference in context her experience is of limited weight. The terms of the letter of 30 June 2014 prepared by Mr Stanton were firm but no attacking in stating that: [24]
“The matters that have been raised in this letter are serious and a significant improvement from yourself is required to meet the expected standards of performance. Council is committed to working with you to achieve a successful outcome”.
[24]Exhibit 6.
Given Mr Potter’s refusal to accept that the survey results could reflect on his management and could require steps to be taken to address those matters, it is likely he perceived any criticism made against him in that respect, or the raising of issues as to his management, to be ill-founded and unfair. It is likely that he perceived this approach to be bullying, even when in fact that was not the case. That is particularly so when it is being raised by someone he did not know, who had only recently come into the position and where there was no evidence that prior to 2014 his performance had been questioned.
I accept that Mr Stanton may have been at his desk when Mr Potter walked in and then walked across to the meeting table.
Overall, I do not find that the allegations in [7] of the SOC are established or that Mr Stanton’s behaviour was threatening, overbearing or bullying.
Post 30 June 2014 Meeting
Mr Potter stated that after the 30 June 2014 meeting, he was confused and stressed in the following weeks as to what he should do. He stated that he requested weekly meetings with Mr Wolff and Mr Stanton, to see how they could work through the issues to help him deliver what they were asking of him, which did not occur. He expressed concern to the psychiatrists this did not occur because he felt he needed guidance. He completed an action plan which he emailed to Mr Stanton and Mr Wolff.
He stated that he had a team meeting with his staff and Mr Wolff a couple of weeks after that, to discuss operational matters, but did not recall having further contact with Mr Stanton until 21 July 2014 as far as he could recall.
Mr Potter’s confusion as to what he should do appears to stem from the shock that his management was being challenged which had not been done before, based on a survey which he did not regard as being of great significance or importance, which had been completed sometime before. His confusion appears to arise from his lack of understanding rather than a lack of explanation of what was expected. The letter of 30 June 2014 sets out very clear expectations in relation to his performance, as well as “initiatives and actions” to be undertaken to assist him to successfully meet expectations. There were initiatives outlined which were directed to staff in his team as well, including “the development and implementation of performance plans for each member of the Local Laws Branch”. That is supported by the evidence of Ms Kelly. She stated that Mr Potter did not understand where the allegations in the letter of 30 June 2014 came from. Mr Potter stated that he also showed her the letter of 30 June 2014 to Ms Kelly who was two rooms away from him and with whom he had a good working relationship. Ms Kelly stated that Mr Potter came into her office quite confused and that he did not see it coming. She agreed that before he got the letter he considered that he had been doing a good job. As to the letter of 30 June 2014 and the issues it raised , she did consider that his consistency was an issue in relation to his treatment of staff, because of differential treatment. She accepted there were lots of issues in his department. She agreed there were problems in Mr Potter’s team which had been allowed to drift along prior to Mr Stanton’s intervention, and that there was dysfunction in the team.
Ms Kelly agreed that in mid-2014 there was dysfunction in the Local Laws Team and staff members would come to her to complain and to seek advice. She agreed there was a lot of backstabbing and infighting. She considered that something had to be done about the situation, both amongst the team and from a management point of view.
She advised him to read the letter very carefully to determine what he should do. According to Ms Kelly, Mr Potter did become very withdrawn at work after receiving the letter of 30 June 2014.
Subsequently, Mr Potter’s lack of understanding and insight into the issues raised by the 30 June letter is further demonstrated by the fact that he spoke to Sharon Smith as part of his “own investigation” to see where the trouble lay. He asked her whether she had had a meeting with Mr Stanton. Ms Smith confirmed she had. He stated that he showed her the letter of 30 June 2014 and asked her where the problem was and what he could help her with. She told him that the matter of consistency was an issue. Mr Potter stated that he told her at the time that he thought he was being targeted by Mr Stanton, and they wanted to get rid of him. They had a discussion about other staff members. According to Mr Potter, they spoke about RS and Mr Potter said that if he had not given RS a job he would probably be in jail. Mr Potter stated he made that comment in jest.
Mr Potter’s response is reflective of the fact he did not consider he had done anything that required any response from him. He agreed that one of his complaints with staff was a lack of co-operation and backstabbing, but didn’t agree that one of the complaints made by his staff about him in the organisational survey was his lack of consistency in the way he treated his staff. He also did not agree that Sharon Smith had told him there was an issue with him not treating people consistently. He stated it was a general issue of consistency.
Following Mr Potter’s discussion with Ms Smith, Ms Smith apparently told RS the following day about what Mr Potter had said about him. RS became very upset and complained to Mr Wolff about the fact that his private information had been disclosed. That set off a second series of events which resulted in a workplace investigation.
Mr Wolff recalled that RS came to see him with another individual in his office and raised concerns in relation to a matter involving Mr Potter. RS was upset. He stated that he had been informed by a work colleague, who Mr Wolff believed was Ms Smith, that she had had a conversation with Mr Potter the evening before and private information pertaining to RS was disclosed by Mr Potter to Ms Smith. Mr Wolff subsequently took RS to meet with someone in Human Resources. That appeared to be Ms McCrohon.
RS originally told Mr Wolff he did not wish to make a complaint but subsequently changed his mind after discussing it further. RS was sent home that day and told he needed to formalise a complaint against Mr Potter if he was going to make a complaint. RS did subsequently make a complaint, which Mr Wolff forwarded to Human Resources as well as to Mr Stanton.[25]
[25]Pleaded in 7A of the SOC and admitted.
Ms McCrohon recalled that RS had been brought to see her by Mr Wolff after he had complained that Mr Potter had disclosed confidential information about RS. She stated that RS was very upset, and it took some time to settle him down. Ms McCrohon recalled RS complaining that one of his colleagues had said to him that their manager, who was Mr Potter, had disclosed confidential information that had been shared through the recruitment process relating to RS. She stated that as a result of him coming to her, she took RS through the process that would occur if the matter was investigated. He went home that day and he was offered employment assistance services. He was told if he wanted to make a formal complaint he would need to do so, and they would then track through the process. Given RS was upset and angry, she stated that she considered that it was better to avoid him coming into contact with Mr Potter that day so as to give them some distance. She stated that the group had a history of oversharing information and that there was not a high level of confidentiality within the group.
Following the formal complaint being made, meetings were held with four staff members on or about 14 July 2014. Notes were made of those meetings by both Mr Stanton and Mr Potter.[26] Mr Stanton’s notes are headed “Alleged Breach of Privacy (Ron Potter) – RS”.[27] Two matters that were noted in the notes have been attributed significance by the plaintiff. Firstly, the reference in Mr Stanton’s note about the interview with RS stating that his intent was that there not be a repeat of the situation but that he could continue to work with Mr Potter. Secondly, Ms Smith being recorded in Mr Wolff’s notes as saying that Mr Potter had made a comment to her regarding having “rich sisters” and instigating legal action against the Council in the event of him being dismissed from his employment.
[26]Exhibits 3 and 4 to Report of Mr Wilkinson Exhibit 57.
[27]Appendix 3 Exhibit 57.
Mr Stanton recalled that there were issues in relation to an interaction between Mr Potter and RS which caused RS concern. He stated that the matter was brought to his attention by Mr Wolff. He recalled interviewing all of the Local Laws staff at some point but could not recall whether that was specifically about the matters raised by RS.
Mr Stanton could touch type and recalled that he took notes from conversations with members of staff, which would have been the basis of the document of interviews with staff on 14 July 2014.[28]
[28]Exhibit 62.
Mr Stanton accepted that if he had recorded matters in his notes of interviews on 14 July 2014,[29] he would have been told those matters. That would have included that he was told by Ms Smith that Mr Potter had shown her the letter of 30 June 2014 and indicated “he felt he was being stitched up” and that “he has two rich sisters and would fight it all the way”. Mr Stanton also would have been aware from his notes that RS had stated that he was still willing to work with Mr Potter.
[29]Appendix 3 to Exhibit 57.
Aitken Legal were engaged to carry out an impartial investigation in relation to the complaints of RS and other matters which arose as a result of the meetings with the staff on 14 July 2014. At the time of their engagement, it appears the typed notes of the meetings were not available. Ms McCrohon, however, said that she would have been aware of the content of those discussions at the time they were occurring as it was a matter being discussed, although she could not specifically recall that being the case. That is given some support by the follow up email from Ms Johnston on 17 July 2014, who worked in Ms McCrohon’s team, to Chris Campbell of Aitken Legal. It identified the three allegations to be investigated against Mr Potter and attached a formal complaint lodged by RS, a performance report written by a Mr Bryson relating to RS, and the written notes prepared by Mr Stanton and Mr Wolff of the meetings of 14 July 2014, even though the notes were dated 17 August.[30] That email requested that Aitken Legal draft the letter to Mr Potter in relation to the formal complaint that was to be made against him and the list of allegations.
[30]Exhibit 60.
Ms McCrohon said that she was responsible for engaging Aitken Legal to investigate. Aitken Legal were part of the Council panel. Ms McCrohon did not think that there was a separate letter of engagement. She stated that the notes on 14 July 2014, which were prepared by Mr Stanton and Mr Wolff and found at Appendix 3 and 4 of the Aitken Report, were matters which she either reviewed or she had been told about at the time.
Aitken Legal were requested to prepare a letter to Mr Potter in relation to the complaints and investigation. That was done however there was no evidence in relation to how it came to be drawn.
Meeting of 21 July 2014
A meeting occurred on 21 July 2014 between Mr Potter, Mr Stanton and Ms McCrohon. Mr Potter was contacted by Ms Johnston requesting that he attend the meeting at approximately 2.00pm – 3.00pm. He was not advised as to the nature of the meeting nor that he could bring a support person. At the meeting Mr Potter was provided with the letter dated 21 July 2014.
The letter of 21 July 2014 was drafted by Aitken Legal. It appears likely to have been drafted by the Partner of Aitken Legal, Mr Campbell, who was first contacted by Ms McCrohon and Ms Johnston, not Mr Wilkinson.[31]
[31][8(c)(iii)-(vii) SOC].
Mr Potter recalled a meeting with Mr Stanton and Ms McCrohon on 21 July 2014.
He stated that he had no notice of what the meeting of 21 July 2014 was about. He attended the meeting in Mr Stanton’s office. Mr Stanton and Ms McCrohon were present. Mr Stanton told him they were standing him down. Ms McCrohon added that they were standing him down pending an investigation. When Mr Potter asked what he had done wrong, Ms McCrohon told him that he had disclosed confidential information about RS. He said he responded that he had not, and that only he and Mr Grant knew about that. He asked what the worst-case scenario was, and Ms McCrohon said it could result in his termination. He stated that he could not believe what was happening. He stated was upset and confused as he cradled his head in his hands.
He was told by Ms McCrohon that he should take his personal belongings and could take his work car home and return it the following day, and that his access card would not work after he had left the building.
He was given a letter at the meeting signed by the CEO, Mr Smith.[32] That letter, amongst other things, outlined an investigative process that was to be undertaken by Mr Wilkinson, which was described as an investigation of serious misconduct. The letter also contained a high level summary of the complaints against him.
[32]Exhibit 7.
Mr Potter stated that he did not read the letter through. He stated that Clause 6 of the Disciplinary Action Procedure referred to in the letter was not attached. Mr Potter stated that he felt prejudged and that he had not had the opportunity to provide his side of the story. He felt confused, angry and upset.
As to the 21 July 2014 meeting, Mr Potter was adamant that in response to his questions as to what he had done wrong, Ms McCrohon stated that he had divulged confidential information about RS, rather than there being an allegation to that effect. According to him “It’s embedded in my brain”.
He stated that notwithstanding the fact that the letter stated there would be an investigation conducted by Mr Wilkinson, he felt that he was prejudged in the matter. He maintained that was so even though when Mr Wilkinson had told him early in his interview of 30 July 2014 that no decision had been reached as to what actually happened, he had responded “That’s fine. I sort of realised that.”. Mr Potter stated that while he responded that way, that was not what he thought.

Mr Potter agreed in cross-examination that as at 21 July 2014, he knew he could access the Council’s employee assistance program and could access a confidential counselling service. He accessed the counselling service at some point in August 2014, although he cannot recall the date.
Mr Stanton could not recall the meeting on 21 July 2014, but agreed he could have told Mr Potter he was standing him down. He could recall that there was some discussion about the complaints of RS and the confidential information.[33] He could recall some discussion about the use of a vehicle by Mr Potter.
[33]Mr Stanton in evidence identified what that information was but in the interests of RS’ personal information not being disclosed, I have referred to it in this way.
Ms McCrohon recalled that the letter of 21 July 2014 was prepared by Aitken Legal. Ms Rowena Johnston would then have prepared it for signing and someone from the human resources team would have spoken to Mr Smith about the letter. She does not recall if it was her or Ms Johnston.
Ms McCrohon stated that at the 21 July 2014 meeting Mr Stanton had explained to Mr Potter that he was being stood down. Ms McCrohon’s recollection was that Mr Stanton went through the letter of 21 July 2014 with Mr Potter. She recalled that he said “What’ve I done?” and something to the effect of “What have I done wrong?”. She said that the allegations would be shared with him formally in a letter. She said he asked specifically who and what to which she responded “it has been alleged against you that you have divulged personal information about [RS’s] incarceration.”[34] She rejected that she said “You’ve divulged personal information about RS’s incarceration”. She said she was confident that was the case because she had enough experience with allegations and investigations to know that until a matter is proven through the process, it is always alleged. She stated that she would not have left out the word “allegation”. Ms McCrohon did recall that Mr Potter responded that he did not disclose confidential information of RS and only Mr Grant knew.
[34]In evidence she stated what it was.
Ms McCrohon recalled that Mr Potter asked “Where could this lead?” Based on her usual practice, she believes that she told him there would be an external impartial investigation and said that depending on the findings, there could be no action up to possibly termination or other disciplinary action. Ms McCrohon does not recall that Mr Potter was visibly upset at the time, but that he seemed shocked and seemed to want to get to the bottom of things.
Ms McCrohon stated that she told Mr Potter it was really important not to step outside the process. She could not recall mentioning any specific person who he should not contact, but could recall that she mentioned the team and anyone at the Council or anyone previously employed by the Council. She stated that she emphasised this because there was a history of his team oversharing information and talking about the private information of other people.
Ms McCrohon recalled speaking to Mr Potter via telephone on the evening of 21 July 2014. She remembered reinforcing that he was not to talk to other people and that they had a discussion about the process and how long it may take. She stated the phone call was really to see how he was doing and to emphasise that it was important for him not to speak to people that may be asked to be part of the process. She cannot recall whether she mentioned any specific person but stated she did mention people previously employed by the Council because Mr Potter had strong personal relationships with people outside the Council and had mentioned Mr Grant in relation to the issue with RS.
The decision as to whether a staff member would be suspended had to be made by the CEO, Mr Smith. Ms McCrohon stated that she did not recommend suspension one way or another, but she said that there was consideration of the health and wellbeing of the team given there was infighting, as well as Mr Potter, in light of the complaints made.
Her recollection was that it was Mr Stanton who spoke to Mr Smith, as Mr Smith was Mr Stanton’s manager. She stated that the practise was that the CEO, Mr Smith, would be given all material that was relevant. She did not recall if she had given that material to him personally.
Mr Smith signed the letter of 21 July 2014. He has little recollection of what he was told in relation to the letters, and agreed that on its face, the letter of 21 July 2014 appeared to indicate that the reason for Mr Potter being stood down was to give him time to get ready for the interview. He stated, however, that his practice was to ask what the background was, and the issues involved, whether any applicable procedure had been followed and whether legal advice had been obtained. His practice was to ensure proper procedures were followed. He suspects the letter of 21 July 2014 had been prepared by Ms McCrohon.
Mr Smith was directed to different disciplinary procedures at the Council. He had no recollection of what procedure applied in relation to the investigation and suspension of Mr Potter nor could he recall the evidence that was before him when he signed the letter. He could recall that there was a complaint and appreciated the serious nature of the suspension, such that he considered there would have been reasonably strong evidence, and that there was evidence and information that warranted the action that was taken. He made reference to notes of 14 July 2014 from Mr Stanton and Mr Wolff being in existence but he could not recall whether he had specifically received them or looked at them.
In cross-examination, Mr Smith was asked whether he had considered deploying Mr Potter somewhere else in the Council during the investigation. Mr Smith stated that it was unusual to consider deploying someone such as Mr Potter somewhere else in the Council in he circumstances. He said that redeploying to customer service would not have been viable, given the staff issues that were involved and given that there were reasonable grounds for the suspension. He said that the process had to be played out in order to reach any view on the matter. He speculated that the evidence and the complaint of RS were matters of which he was aware at the time of the suspension and that justified the suspension, but he could not recall if he had been provided with any such information.
As to considering alternatives for Mr Potter’s employment, Mr Stanton could recall that it was raised with him whether there were any alternative positions Mr Potter could work in within the Council. He thinks that there were some suggestions about his working in the call centre, but he could not recall any details. It had been suggested that he could work in frontline management as a customer contact officer, but Mr Stanton stated that Mr Potter would have required training. He agreed that it was possible in theory that Mr Potter could have been put into other roles in disaster management or the Local Laws area of governance, as well as other roles .
Findings
The material aspects of the meeting of 21 July 2014 that are disputed are:
(a)That Ms McCrohon had said, in response to Mr Potter asking what he had done wrong, words to the effect of “You have divulged personal information about a staff member, namely [RS’s] [personal information]. You told a staff member about [RS’s] [personal information]”;
(b)That Mr Potter had stated “No I didn’t, the only persons who know about that are myself and Michael Grant. Where is this leading? What is the worst case scenario here?”;
(c)That Ms McCrohon had said words to the effect of “It could end in the termination of your employment”;
(d)That Mr Potter had been visibly upset and had his head in his hands.
It is also alleged that the only information which the Council’s CEO had in relation to the formal complaint by RS was the formal complaint prepared by RS, pleaded in paragraph 7A of the SOC. Mr Smith could not recall what material he had before him at the time, however given the letter was drafted after the notes of the 14 July 2014 meetings were made, it is likely he was provided with them, given Ms McCrohon’s evidence that was the usual practice for all material information to be provided to a CEO.
While Mr Stanton could recall words being spoken about RS’s personal information and that there was a discussion about RS’s concern. He stated in cross-examination that he believed what Mr Potter had heard to be correct. However, clarification sought of that statement made it plain that he was basing his evidence upon what he knew to be the general nature of the discussion and what would have occurred, rather than any recollection. I accept Ms McCrohon’s evidence that she did not refer to the divulging of personal information about RS as having occurred, but rather referred to it as an allegation that had been made. Ms McCrohon was experienced in HR management, having worked in that field and achieved the position of manager. She stated that would have referred to the matter as what was alleged, because she had dealt with such matters enough times to know that until the matter was proven through the process, it was always alleged. She was emphatic that she would not have left out the word “allegation”.
Ms McCrohon’s evidence is supported by the terms of the email from Ms Johnston to Mr Campbell which refers to the discussion with Ms McCrohon and that the investigation “is relating to three alleged allegations”.[35] Further, the letter of 21 July 2014 emphasised that no findings had been made, that an investigation process was to occur and that “in summary the allegations to be provided to you will be based upon the complaints that have been made by [RS] regarding your behaviour … from Ms Smith regarding the same issue and from the evidence of other colleagues who are aware of those incidents and that the complaint is based upon alleged breaches of confidentiality”. I accept given Ms McCrohon’s experience and training she referred to the subject of the complaint as allegations.
[35]Exhibit 60.
I also accept that when Mr Potter asked where the investigation could lead, Ms McCrohon explained that they would get an external impartial investigation to track through the process and, based on the findings, a decision could be made ranging from no disciplinary action up to termination. Ms McCrohon was definite that she recalled saying “It could end up in disciplinary action up to and including termination” rather than just stating “It could end in the termination of your employment”, as Mr Potter recalled.
Ms McCrohon’s evidence accords with what would be expected of someone with her training and position. It also accords with the fact that the letter of 21 July 2014 emphasised that there would be no determinations without appropriate findings, although the letter did foreshadow that whether Mr Potter’s employment could continue with the Council would need to be a matter considered if there were findings of serious misconduct. Mr Potter had also acknowledged when speaking to Mr Wilkinson that Mr Wilkinson informed him that no decision had been reached at that point and he responded “That’s fine. I sort of realised that” which is consistent with the matters concerned being described as allegations by Ms McCrohon rather than a prejudged conclusion.
Ms McCrohon no longer worked with the Council and was measured in her evidence and gave it impartially I accept Ms McCrohon’s evidence as to what occurred.
Notwithstanding the statements he made to the contrary to Mr Wilkinson, and the terms of the letters of 21 and 28 July 2014, Mr Potter continued to assert that he felt a decision had been reached and he had already been judged. That contention lacks credibility. I do not accept his evidence. I consider Mr Potter’s evidence as to what occurred is unreliable as it is distorted by his feelings of persecution rather than being a recollection of what objectively happened. The fact that Mr Potter recalls the matters of disclosure and termination being stated in more absolute terms is consistent with the fact that he was upset at being stood down and investigated which he considered was unfair and he felt he was being victimised.
I accept that Mr Potter showed in the meeting that he was visibly shocked, as was observed by Ms McCrohon, but not that he cradled his head in his hands and asked “What have I done wrong?”.
I also find that Mr Potter was told at the meeting that he could not contact any witnesses or potential witnesses, nor have any contact with the complainant and any other Council employees outside those previously advised. That is consistent with paragraph 4 of the letter of 21 July 2014 and Ms McCrohon’s evidence that Mr Potter’s team had a history of oversharing information.
After the Meeting of 21 July 2014
Mr Potter stated that when he got home and told his wife he had been stood down, he was very emotional and crying because he felt targeted when he had done nothing wrong. He also rang Mr Grant, who was his friend and ex-director, to see how he should handle it. He had never been stood down before.
Mr Potter stated that later that night Ms McCrohon rang him to see if he was alright, after he had spoken to Mr Grant.
I accept that Ms McCrohon, in a further conversation with Mr Potter that evening, emphasised to him that it was important for him not to step out of the process and not to speak to anyone who was in the team or anyone who had previously been at the Council. Ms McCrohon had good reason as to why she had said that, namely it was important for him to follow the process as there was a history in that team of oversharing and it could affect the investigation.
Ms McCrohon stated that Mr Potter had mentioned in the meeting of 21 July 2014 when the question of the allegation of RS that he said they should speak to Mr Grant in connection with the issue about RS. Mr Potter also stated that he had referred to Mr Grant in that meeting. He also agreed that Ms McCrohon had emphasised a number of times that it was important for him not to talk to anybody about the matters concerned and follow what was contained in the letter. I find that it is likely that Ms McCrohon did refer to Mr Potter not speaking to potential witnesses and did refer to Mr Grant in her discussion with Mr Potter on the evening of 21 July 2014. That is consistent with the fact that Mr Potter mentioned Mr Grant as a relevant person in the meeting of 21 July 2014 and with what was stated in the letter of 22 January 2015,[36] in relation to that conversation which Ms McCrohon and Mr Stanton met with Mr Potter to discuss. If Ms McCrohon considered what it stated was incorrect, I consider it was likely that she would have corrected it, given that founded a further allegation of misconduct against Mr Potter. There was no evidence suggesting that Ms McCrohon had any personal agenda in relation to Mr Potter. The objective evidence suggests she was simply doing her job.
[36]Exhibit 22.
Letter of Allegations and Meeting with Mr Wilkinson
No specific allegations arise out of the conduct of investigation or its findings. However, allegations are made as to the failure to provide Mr Potter with a support person, keep him updated and provide the report to him by 8 August 2014 which Mr Wilkinson is alleged to have acted as agent of the Council.
Mr Potter received a letter on 28 July 2014.[37] It contained further allegations and particulars of allegations. He stated he received that in the mail the following day. That letter had been prepared by Mr Wilkinson for the Council.
[37]Exhibit 8.
Mr Potter met with Mr Wilkinson on 30 July 2014. Mr Potter agreed that when he met with Mr Wilkinson, he discussed the factions within the staff and the fact that there was a lot of backstabbing going on. Mr Potter said he mentioned a meeting where he had put up on a whiteboard a reference to “no backstabbing” and “team cohesion”.
Mr Potter’s evidence-in-chief was that his union representative, Jacelyn Mitchell, was present by phone. According to Mr Potter, Ms Mitchell asked about the time of the investigation report, to which Mr Wilkinson had responded that it would be seven days from the conclusion of the interview. Mr Potter stated he said to Mr Wilkinson, “So seven days, today is Wednesday, so it will be next Friday that the finding would be in” and Mr Wilkinson stated “Yeah it should be next Friday”.[38]
[38]T1-54/22.
Mr Potter agreed that at the end of the meeting of 30 July 2014, after Ms Mitchell, his union representative, made an inquiry as to the timeframe for when the matter would be finalised. Mr Potter’s evidence was that Mr Wilkinson said:
“The original timeline was to try and get it finalised within the next seven days. That’s probably going to be dependant now upon the information that Ron’s going to give me access to following the interview.
Remember that?---Yes. Yes.
And then Ms Mitchell said, “Yep.” And Mr Wilkinson said:
And I’m now going to have to try and speak to Michael Grant.
And he asked you whether you could think of someone else that he could speak to. Do you remember that?---Yes.
And you said:
No. Just as I said, I spoke to Ros about the counselling form.
That was the lady from HR?---Yes.
So you could possibly talk to Ros. Michael Grant was about the jail thing.
Mr Wilkinson said:
Michael Grant, I’m going to speak to.
Remember that?---Not in its entirety, no.”
It was also put to Mr Potter that:
“Mr Wilkinson said to you:
Okay. I’ve got no more questions, so thanks for your time. I’m going to stop the recording now. I’m thinking for ease, Union – referring to him as Mitchell:
…is it easier if I leave the room and you have a quick word with Ron before I go answer it?
Um, yep. That’s fine.
Remember that?---Yes.
And that’s what happened, wasn’t it?---That’s what happened at that time, yes.
Yep?---And he turned the tape off, yes.”
Mr Potter, however, stated that it was after the meeting when he walked out the door, Mr Wilkinson confirmed that in seven days there would be a report, and he said that would make it next Friday to which Mr Wilkinson responded that it “should be”.
Mr Potter stated in cross-examination that the conversation that the report should be Friday occurred after the tape was turned off. He rejected the suggestion that he only said that the conversation with Mr Wilkinson took place when they were walking out the door, after he was told that there was no reference on the tape to the conversation. Mr Wilkinson was called on behalf of the defendant. Mr Wilkson stated that he could not recall any conversation taking place with Mr Potter at the end of the interview about the timeline for finalisation after he had turned the tape off. Mr Wilkinson could not recall a discussion about when the report might be available or when his investigation might be concluded. Following this, the recording of Mr Wilkinson’s interview with Mr Potter was played, where Mr Potter’s union representative, Ms Mitchell, raised the expected timeframe. He agreed, however, that he was asked about the timing of the investigation by the union representative who attended the meeting with Mr Potter on 30 July 2014 by telephone. Mr Wilkinson was played the recording. He did not recall any other discussion with Mr Potter about the timeline for finalisation. He did not, however, accept that he had a conversation with Mr Potter where he stated that there was a seven day completion time, although he had indicated that was what he was aiming for. In the record of interview with Mr Potter and Ms Mitchell, however, he noted that he qualified that by saying that he was going to go and interview Mr Grant at the request of Mr Potter.
Mr Wilkinson was extensively cross-examined by the plaintiff’s counsel. Mr Wilkinson stated that Aitken Legal were retained to conduct an investigation which involved interviewing witnesses, writing a report and delivering a report to the Council.

Mr Potter’s evidence-in-chief accorded more with the description given to Dr Byth than Dr Jetnikoff[379] although he made concessions in cross-examination which supported what he had told Dr Jetnikoff.
[379]Eg T1-74, T1-76 and T1-79.
Mr Potter has recently started running a boot camp since November 2020 for an hour on Wednesday mornings with 2 or 4 people and one occasion 6 people.[380]
[380]T 1-78.
In cross-examination he agreed however that his wife worked full time, that they lived on a five acre property and that he was an avid gardener and landscaper and did a lot of cleaning and domestic work “because I had excess energy and anger” that he had to get rid of. [381] He stated that he had reduced social contact to a degree but attended some social functions such as at his son’s because they said “it would do me good to get out”. He attended touch football, upgraded his refereeing certificate, travelled in the Wide Bay-Burnett area to referee and since 2018 had coached a women’s football team which he enjoyed, which he told Ms White.[382] He had coached them for some twelve months and attended a dinner with them.[383] He agreed he had driven to Proserpine with his wife in late October 2018 to see his mother.
[381]T2-27/35-38.
[382]T2-31/33-34.
[383]T2-33/6-36.
Mrs Potter described Mr Potter’s condition as up and down, being aggressive and starting arguments such as at touch football, when depressed not going out, not eating, sleeping and not speaking to him. She stated his rage attacks had receded, that he didn’t do anything socially and would mow the lawn if she harped on but didn’t do anything else and sometimes did not shower even after jogging and she didn’t let him drive because of his poor compensation. She did not consider he could work because he was up and down and had days where she could not get him out of bed.
In cross-examination she agreed that he felt he had suffered injustice because of what had occurred. She rejected the description of what Mr Potter told Dr Jetnikoff in 2022. She stated he got up with her and she made him breakfast but then he did not eat until she got home, or dress and shower. She agreed he had coached the women’s touch football team and had pleasure in that. She stated he’d improve his mood until something happened and then he tended to blame himself.[384]
[384]T2-47.
I considered that the cross-examination of Mr Potter and Mrs Potter did show that they had both exaggerated Mr Potter’s symptoms to a degree insofar as they described Mr Potter at his worst, not as a result of there being any dishonesty. I consider that also permeated the description of symptoms to Dr Byth as opposed to Dr Jetnikoff. In Mr Potter’s case, it is evident that his feelings towards the Council’s actions have had a destructive effect upon him and his antagonism towards the Council does not appear to have abated. Mr Potter has seen Dr Jetnikoff both before and after this litigation commenced. Dr Jetnikoff did not consider what he was told by Mr Potter was likely an over-exaggeration. While Dr Jetnikoff noted the potential for such exaggeration, he considered that Mr Potter’s presentation had been consistent.
In the case of Mrs Potter, I do not underestimate the difficulty she would have in watching the deterioration in her husband and dealing with Mr Potter and his ongoing symptoms which, on any view, are not insignificant and at times were quite extreme. They clearly fluctuate. That may have led to some exaggeration by her insofar as she may have focussed on the bad days. Given she was at work all day, Mr Potter clearly had to fend for himself to some degree. The fact that there were examples of exaggeration were evident from her description that he was not able to drive a car and yet she had to concede that he shared the driving when they went to visit his mother up north. Similarly, while she indicated that he was not able to enjoy things socially, it was evident that Mr Potter was proud of the fact that he had obtained his personal training certificate and had been coaching the female football team and had engaged in a social outing with them.
Dr Byth considered that Dr Jetnikoff underestimated the severity of Mr Potter’s psychiatric impairment, possibly because Mr Potter was very lethargic and withdrawn and tending to underreport his symptoms because of severe major depression. I do not accept that given the contrast in the description of symptoms in both 2017 and 2020, even accepting Mr Potter’s condition would vary. Nor can it be explained by Mr Potter being said to minimise his symptoms when there is a considerable difference to what is described to Dr Byth as opposed to Dr Jetnikoff by Mr Potter. If Mr Potter was understating his symptoms which Dr Byth said became evident from his discussion with Mrs Potter one would expect them to have understated it to both. If Mr Potter’s description to each doctor had been similar, Mrs Potter’s description of Mr Potter may have been of greater significance, and give greater support to the view he was minimising his symptoms.^[385]
[385]Report of September 2018 updated on 30 March 2020.
To the extent Dr Byth suggested Dr Jetnikoff had not questioned Mr Potter deeply enough about the impact of his depression, anger and social withdrawal on his marriage and family and had not realised how the depressive symptoms would make it impossible for him to apply for work and undertake any paid work,[386] that is not reflected by the terms of the reports of Dr Jetnikoff, which reflects somebody who has provided a considered opinion after discussing matters with Mr Potter. It was evident from Dr Jetnikoff’s evidence that he does not lack empathy for Mr Potter. It was not suggested that Mr Potter did not trust Dr Jetnikoff. In contrast, Mr Potter did not tell Dr Byth about his obtaining the personal training certificate, upgrading his referee certificate, training the women’s football team or driving to Proserpine. Nor did Mrs Potter. That is consistent with there being some exaggeration of Mr Potter’s symptoms to Dr Byth. Nor did either discuss Mr Potter’s alcohol intake with Dr Byth. In relation to the psychiatric impairment rating scale which focuses on several areas of function, the difference between the last assessments of Dr Byth and Dr Jetnikoff are set out in the table below:
[386]Exhibit 38 at [13.5].

Activities of Daily Living

Dr Byth

Dr Jetnikoff

Self-care and personal hygiene
Class 3 Class 2

Social and recreational activities
Class 4 Class 2

Travel
Class 3 Class 1

Social functioning (relationships)
Class 2 Class 4

Concentration
Class 4 Class 2

Adaption
Class 4 Class 4

Dr Byth agreed in cross-examination that if Mr Potter’s description to Dr Jetnikoff in the memoranda at [35] and [38] was correct, his assessment of PIRS 2 for self-care and hygiene would be open.[387] While Mrs Potter appears to drive the household activities and Mr Potter, given Mrs Potter was at work all day, and given the concessions made in cross-examination, he is able to function without supervision and do regular exercise. He attended Dr Jetnikoff on some occasions on his own well groomed. I consider Mr Potter’s description as to his self-care and hygiene to Dr Jetnikoff as being generally more accurate. However, giving some weight to the limitations described by Mrs Potter, I consider that his impairment would be a mild impairment although towards the upper range of impairment within class 2
[387]T 3-59/14-15.
Dr Byth also agreed that if Mr Potter’s description to Dr Jetnikoff in the memoranda at [40] and [41] of Social and Recreational Activities was more accurate, that his assessment of PIRS as class 2 would be appropriate. Dr Jetnikoff’s assessment was supported by his evidence of his engagement with the Girls Football team and travelling away from home, albeit to a limited extent to referee.[388] Dr Byth has failed to explain how these matters could be carried out by Mr Potter. I accept however that while he has attended social events it is often at the prompting of his family and remains quiet. He also interacts with his neighbour. I consider that he would be towards the upper range of impairment within class 2.
[388]T3-59/16-21.
In relation to his assessment in relation to travel, Dr Byth while accepting Dr Jetnikoff’s assessment on the basis of what he was told and the matters in [45] – [49], commented that it was also affected not just by the physical activity but the desire to carry out that activity and how it might be affected by the mental illness. Class 3 is described as not travelling away from home without a support person and there may be problems resulting from excessive anxiety or cognitive impairment. That assessment is not justified on the evidence. Given Mr Potter on his own evidence has been travelling away albeit on limited occasions on his own and will go to the shop and medical appointments if necessary and shared driving with Mrs Potter to Proserpine, he does not satisfy the description in class 3. Dr Jetnikoff however presumed Mr Potter drove on his own to Proserpine which was not the case insofar as it was shared. Given that I think his impairment is accurately described as class 1 but at the top of the range.
Similarly, Dr Byth made the concession in relation to social functioning that if what Dr Jetnikoff was told by Mr Potter was true, the PIRS as class 2 would be how to assess it. Dr Byth considered that Mrs Potter’s evidence was of some importance in that regard given it is questionable how much reliable a depressed person’s symptoms were. Dr Byth’s assessment of class 4 does not accord with the evidence of either Mr or Mrs Potter. While the relationship between Mr Potter and Mrs Potter and Mr Potter and his family has been subject to strain, the evidence does not suggest the impairment is a moderate impairment. Further, the evidence suggests that in recent times it has improved. I consider Dr Jetnikoff’s assessment of Mr Potter’s level of impairment as class 2 is correct. Again, I consider it would be at the upper end of the range.
Dr Byth similarly accepted Dr Jetnikoff’s assessment for concentration, persistence and pace as PIRS class 2 was correct if the symptoms described to him at [55] and [57] were accurate but stated that he did not believe the description from his observations. Given Mr Potter was able to referee at touch football and gain his certificate in personal training and drive to Proserpine, I consider his description provided to Dr Jetnikoff was more accurate than Mr and Mrs Potter’s description to Dr Byth. However, Dr Jetnikoff has taken into account Mr Potter’s alcohol consumption as affecting his concentration. I agree Dr Byth’s description of the symptoms he has taken into account falls short of a severe impairment.
Dr Byth did not appear to give any weight to Mr Potter’s achievements in his role as a referee and being able to drive to North Queensland. Clearly Mr Potter is affected by his psychiatric condition, but I am not persuaded it is to the level described by Mr Potter to Dr Byth. I note Dr Jetnikoff expressed the view that he thought Mr Potter’s alcohol consumption would probably impair his concentration and without it his adjustment disorder would be unlikely to do so but still assessed his impairment as class 2.
Taking into account Dr Jetnikoff’s ability to drive with Mrs Potter to Proserpine. While Dr Jetnikoff regarded Mr Potter’s alcohol intake as a separate issue, he considered “at most” Mr Potter would have a mild impairment. Taking his exclusion of the factor of alcohol into account, I would assess it at the upper end of class 2.
Both Dr Jetnikoff and Dr Byth agreed that the appropriate PIRS assessment for Adaption was class 4. Given Mr Potter’s work history since 2014 I find that is the appropriate classification. While Dr Byth considered this assessment to be incongruous with the remainder of the assessments by Dr Jetnikoff and contended that the six classes were usually of similar effect that was rejected by Dr Jetnikoff. There was no evidence of any weight to support Dr Byth’s view. Dr Jetnikoff explained that it was assessed at this level because his psychiatric illness was linked to his employment.
According to Dr Jetnikoff, Dr Byth’s assessment of 47 per cent describes a person with a level of impairment that would usually need to be regularly, if not continuously, hospitalised and while he noted that Mr Potter had had periods of hospitalisation in 2015 that was because of his alcohol consumption, it was not because of his psychiatric condition. The evidence does not support Dr Potter being hospitalised on a regular basis. While there is evidence Mr Potter was admitted in 2015, the precise cause of the hospitalisation was not addressed in evidence in any depth but it was not suggested it was a matter which would require to be revisited.
One further point of distinction between Dr Byth and Dr Jetnikoff is that Dr Jetnikoff considered that Mr Potter suffered alcohol abuse disorder which was not caused by his workplace issues.[389] He stated that Mr Potter’s alcohol dependence impacted on the PIRS rating and that the effects of alcohol consumption were not components of his PIRS rating which only considered the psychiatric condition. Dr Jetnikoff however agreed that there was a link between his increased alcohol consumption and his psychiatric condition. I accept that Mr Potter’s alcohol consumption did increase following the 2014 events. It would also appear that his alcohol intake did not assist his recovery with both Dr Byth and Dr Jetnikoff noting that he should reduce or cease his alcohol intake. Mr Potter himself noted to Dr Jetnikoff that his condition was worse when he had alcohol, although his rage incidents were not limited to when he had consumed too much alcohol. That was confirmed by Mrs Potter. Counsel for the Defendant effectively conceded that they have to take Mr Potter as they found him.[390] I would not consider that Mr Potter’s PIRS impairment should be reduced because he has an alcohol dependence.
[389]Exhibit 50 at page 15. In that regard he relied on Dr Martin’s reports: T4-44/35-36.
[390]T6-63/5-6.
Overall, I prefer Dr Jetnikoff’s assessment although I would place Mr Potter’s ISV at a higher level taking account that he made some downgrading due to his assessment that Mr Potter had an alcohol dependency unrelated to his psychiatric condition. While I accept he was already a heavy drinker before the events of June and July, given he indicated to Dr Blake he preferred to drink over taking medication, I find that the events of June and July did exacerbate his heavy drinking to greater levels. The other reasons I prefer Dr Jetnikoff’s assessment is that:
(a)Mr Potter has managed to upgrade his referee qualifications and do some travel to referee. Although he may have at times created conflict when he attended the game, it was not to the extent that he was excluded from attending;
(b)he has been able to obtain his personal training certificate and undertake some personal training of a small number of clients;
(c)he has been able to coach the women’s football team and build sufficient rapport with them that they had a celebratory dinner with him;
(d)His marriage has survived the challenges posed by his condition;
(e)He was able to drive with his wife to Bowen to see his mum;
(f)His rage incidents have generally been recorded as being worse when he had consumed a significant amount of alcohol;
(g)The fact that he was most affected in his capacity to work is supported by the fact he went for job interviews and developed high anxiety such that Dr Martin advised him to stop going to interviews. Similarly, he felt unable to engage with those in the workplace to find out the outcome of the investigation for many months and could not attend the workplace but rather some neutral ground away from the office was found; and
(h)There is some evidence that the present litigation may have led Mr Potter to exaggerate his symptoms albeit unconsciously. His engagement with Dr Jetnikoff prior to the litigation commencing was more positive and measured than after the litigation. That accords with his evidence where he was unwilling to make concessions.
I therefore consider that the injury suffered by him is consistent with a PIRS of 7% as found by Dr Jetnikoff which is a moderate mental disorder. Taking into account that Mr Potter has not responded well to treatment and still suffers the effects of his injury on a daily basis and Mr Potter adopted alcohol as a form of self-medication although I agree with Dr Jetnikoff that the completion of litigation is likely to result in some improvement in the future. I consider a higher ISV than proposed by the Defendant of 6 and adopt ISV of 9 which equates to $13,360.[391]
[391]Workers’ Compensation and Rehabilitation Regulations 2014 (Qld) Schedule 9 and Schedule 12, table 5.
Past Special Damages
Past special damages are agreed between the parties at $53,533.34.
Interest on past special damages is $453.00 as calculated by the plaintiff.
Future Special Damages
Dr Byth gave evidence that Mr Potter may need hospital admissions and considerations for electrode convulsive therapy in the future. That was a highly precautionary view adopted by Dr Byth based on what can occur in the general population with Mr Potter’s condition and he estimated it was a 5-10 % chance that he included for completeness, rather than it having any sound basis. Dr Jetnikoff did not consider such treatment was required at all. I am not persuaded future hospitalisation or ECT will be required in the future and make no allowance for that. As to his future treatment, Dr Jetnikoff did not consider that Mr Potter would benefit from ongoing treatment with a psychiatrist and psychologist. In his report of 11 July 2017, Dr Jetnikoff considered that future treatment would cost $2,200.00 but adjusted that to $7,500.00 to make allowance for specialist review every few months based on his view that Mr Potter’s condition was not responding to treatment, but did consider he would benefit from treatment for his alcohol problem and for some sessions with a psychologist to assist in the transition after the finalisation of this litigation. Dr Jetnikoff’s view is supported to some extent by Dr Martin who wrote to Mr Potter’s GP stating that Mr Potter’s condition had settled and he would be seeing him every few months for review. Similarly, at least from Mr Potter’s view, he has felt assisted from his sessions with Ms Amy White. I consider a higher allowance should be made than proposed by the defendant given Mr Potter has been having treatment since 2015 to take into account that he may need more consultations upon completion of the litigation to obtain closure and move forward with his life goals and to assist “making sense of the last few years which have been very difficult for him”. The evidence does not support Mr Potter needing to continue with a psychologist once a month and a psychiatrist once every two months long term. I would double the defendant’s proposed amount and allow $15,000.
Past Economic Loss
Mr Potter was born in 1971. He had been employed by the Council or its predecessor prior to the merger) since March 2003. He had worked at the Warwick Shire Council for six years prior to that. He had left school in year 10. He had obtained a number of certificates and two diplomas between 1996 and 2007. Prior to the incidents in question, the evidence supports the fact he loved his job. I find that he would have chosen to have continued to work with the Council in his role as manager of Local Laws.
The defendant calculates the past economic loss to be $371,900.00 whereas the plaintiff calculates to be $508,836.20. The defendant appears to have adopted a significant reduction on the basis that the plaintiff has demonstrated a capacity to engage in football coaching and personal training since 2 August 2018 and also states the weekly compensation benefits were paid until December 2016 whereas the plaintiff accounts for that until August 2016. The plaintiff however states he has earned only a nominal sum of $5,626.92 which it reduced from the calculation of the amount he would have continued to earn in his position.

The plaintiff has shown since August 2018 an ability to carry out some work. I do not however consider the evidence supports the substantial reduction that has been calculated by the defendant of $500 net per week. Based on the psychiatric assessments, I find that Mr Potter could have at least worked as a personal trainer for four people one day a week from August 2018. I therefore will deduct $100 per week from his nett weekly earnings.
Therefore, I would adjust the plaintiff’s estimation to provide for 12 weeks from August 2018 at $1,261.48, from 19 December 2018 to be $1,296.03 and from 19 December 2019 to be $1,328.17 and from 19 December 2020 to be $1,360.74 which will also require an adjustment to the calculation of interest and Superannuation.
Past superannuation is claimed at 13.5% in accordance with his payslips. While the Council uses the amount of 12% but given the amount of 13.5% accords with Mr Potter’s payslips I adopt that amount.
As to future economic loss, the plaintiff bases its calculation on the plaintiff continuing to personally train locals which may attract a net income per week of $125.00. The defendant estimates he should be able to work 20 hours a week. Given the plaintiff has been out of employment for 6.5 years and both Dr Jetnikoff and Dr Byth agree that he cannot work more than one to two days per week and less than twenty hours per fortnight, it is unlikely he will be able to return to the work force other than as a personal trainer as is proposed.
In Peebles v Work Cover Queensland[392] Jackson J stated that:
“The assessment of the hypothetical factual bases or assumptions for the calculation of future economic loss in this case is attended with great uncertainty. The plaintiff’s approach to that uncertainty is that the defendant has to disprove the assumptions for which the plaintiff contends. I do not agree. Overall, the plaintiff bears the onus of proof on the issue of damages. But the question should be considered, having regard to the obvious difficulties of such a hypothetical assessment and the attendant complexities raised by the evidence. The court is required to assess these assumptions and complexities as best it can.”[393]
[392][2020] QSC 106.
[393][2020] QSC 106 at [141].
Mr Potter is 49 years of age. Given the length of time Mr Potter had worked for Councils it is likely he would have remained with the Council for the rest of his working life in a similar position to that which he held before the 2014 events. I accept that given the psychiatric evidence and the fact that Mr Potter has been out of the work force for over 6.5 years that he is unlikely to return to work other than part-time and then not more than twenty hours over a fortnight. He has started to earn income as a personal trainer running a bootcamp. He has had one occasion when six people attended. Although Dr Byth indicated in 2017 that Mr Potter should not work as a personal trainer, bootcamps organised by him would seem to be a viable option for Mr Potter. One would reasonably expect he could build that up to three mornings a week for an hour with an average of four people. Based on $25 per head with some expenses for travel and equipment the best estimate of his earnings would be $225 per week. His loss would therefore be $1335.74 -$225 nett per week for the remaining 18 years of his working life until the notional retirement age.
That is then calculated on the 5% discount tables
The Council contends there should be a discount of 20% whereas the plaintiff contends that a discount of 12% is appropriate. I think an appropriate discount for the vicissitudes of life would be 15%. Although I consider Mr Potter was a heavy drinker prior to the 2014 events I have not found he had an alcohol abuse disorder and has no other known health conditions, although it is evident he was psychologically vulnerable. I therefore am not making any additional discount on that basis. He has no other pre-existing condition. Future Superannuation then must be calculated based on 13.5%.
Conclusion
The claim is dismissed.
I will allow the parties seven (7) days to make any submissions as to costs.

CITATION:	Potter v Gympie Regional Council [2022] QSC 9
PARTIES:	RONALD POTTER (plaintiff) v GYMPIE REGIONAL COUNCIL (defendant)
FILE NO/S:	BS 12923 of 2017
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	10 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	15, 16, 17, 18, 19 and 23 February 2021
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. The Claim should be dismissed. 2. That the parties provide submissions as to costs within seven days.
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – where the plaintiff seeks damages for breach of contract and negligence – where the plaintiff was suspended from work pending an investigation – where the plaintiff was cleared of allegations of serious misconduct, but findings of misconduct and poor management were made – where the plaintiff alleges he suffered a psychiatric injury as a result of negligent conduct in relation to the suspension – whether the defendant owed the plaintiff a relevant duty of care TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – whether a duty of care is excluded – whether any duty of care is extended to include a duty to provide adequate support, lifting the suspension post investigation and keeping the plaintiff informed of the investigation – whether the defendant owed the plaintiff a duty to only suspend the plaintiff’s employment if to do so was a lawful and reasonable direction and the criteria in the defendant’s discipline procedure were met – whether the defendant was obliged to comply with its procedure as it was a lawful and reasonable direction – whether the defendant owed the plaintiff a duty of care during investigation and suspension including a duty to provide a safe system of work TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – whether it was reasonably foreseeable that the plaintiff would suffer a psychiatric injury – whether the plaintiff’s psychiatric injury was the result of a breach of a duty of care by the defendant Enterprise Bargaining Agreement for the Cooloola Shire Council Gympie Regional Council Certified Agreement 2018 Local Government Act 2009 (Qld) s 197 Local Government Industry Award 2010 Local Government Regulations 2012 (Qld) ss 279, 282, 283 Public Sector Ethics Act 1994 Queensland Local Government Officers’ Award 1998 Work Health and Safety Act 2011 (Qld) s 19, 247 Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305C, 305D, 305E Australian Telecommunications Commission v Hart (1982) 43 ALR 165, cited Avenia v Railway and Transport Health Fund Limited [2017] FCA 859, considered Barber v Somerset County Council (2004) 1 WLR 1089 Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420, cited Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, considered Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited Eaton v Tricare (Country) Pty Ltd [2016] QCA 139, cited Erickson v Bagley [2015] VSCA 220, cited Downe v Sydney West Area Health Service (No. 2) (2008) 71 NSWLR 633, considered Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, cited Gogay v Hertfordshire County Council [2000] IRLR 703, considered Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62, cited Govier v Uniting Church in Australia Property Trust [2017] QCA 12, considered Hayes v State of Queensland [2017] 1 Qd R 337, considered Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919, cited Hunkin v Siebert (1934) 51 CLR 538, cited Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64, cited Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, considered Lewis v Heffer [1978] 1 WLR 1061, cited McCabe v Cornwall County Council & Ors [2004] UKHL 35, cited Meandarra Aerial Springs Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd [2013] 1 Qd R 319, cited Moshirian v University of New South Wales [2002] FCA 179, cited Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471 Peebles v Work Cover Queensland [2020] QSC 106, considered Promnitz v Gympie Regional Council [2015] ICQ 11, cited R v Darling Island Steverdoring and Lighterage Co Ltd ex parte Halliday and Sullivan (1938) 60 CLR 601, cited Robertson v State of Queensland [2021] QCA 92, considered Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403, cited Rucker v Stewart [2014] QCA 32, cited State of New South Wales v Paige [2002] NSWCA 235, considered Strong v Woolworths Limited (2012) 246 CLR 182, cited Sullivan v Moody (2001) 207 CLR 562, cited Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, cited The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd (2005) 222 FCR 465, cited Waddell v Mathematics.com.au Pty Ltd [2013] NSWSC 142, cited Walters v Hanson [2020] QSC 216, cited Woolworths Limited v Perrin [2016] 2 Qd R 276, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, cited Yapp v Foreign and Commonwealth Office [2013] EWHC 1098, considered
COUNSEL:	J Kimmins for the plaintiff R Morton for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff Jensen McConaghy Lawyers for the defendant

Activities of Daily Living	Dr Byth	Dr Jetnikoff
Self-care and personal hygiene	Class 3	Class 2
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