Step v Stokes
[2009] NTMC 10
•23 April 2009
PARTIES: VA’CLAV STEP
v
VICKI STOKES
TITLE OF COURT: Local Court
JURISDICTION: Local Court Act
FILE NO(s): 20618554
DELIVERED ON: 23 April 2009
DELIVERED AT: Darwin
HEARING DATE(s): 10 – 13 December 2007, 21, 22, 29 February 2008, 1 December 2008
JUDGMENT OF: Jenny Blokland CM
CATCHWORDS:
TORT – Misfeasance in Public Office – Defamation
Education Act (NT) s4
Va’clav Step v Vicki B Stokes, NT(SC) unreported, 20 May 2008, Angel J
Va’clav Step v Vicki B Stokes, NT(CA), unreported, 3 November 2008
Small v Mahony [2006] NTSC 97
Northern Territory v Mengel (1995) 185 CLR 307
Cornwall and Others v Rowan [2004] 90 SASR 269
Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50
Farquhar v Bottom [1980] 2 NSWLR 380
Capital and Counties Back v Henty [1882] 7 at App Cas 741
Adam v Ward [1917] AC309
Toogood v Spyring (1834) 149 ER 1044
Lackersteen v NTA, (1988) 92 FLR 6
Wilkes v Wood (1763) 98 R 489
Rookes v Barnard [1964] AC 1129
Gillooly, “The Law of Defamation in Australia and New Zealand”, The Federation Press, 1998
REPRESENTATION:
Counsel:
Plaintiff: Self
Defendant: Mr Morris
Solicitors:
Plaintiff: Self
Defendant: Solicitor for the NT
Judgment category classification: B
Judgment ID number: [2009] NTMC 010
Number of paragraphs: 98
IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20618554
[2009] NTMC 010
BETWEEN:
VA’CLAV STEP
Plaintiff
AND:
VICKI STOKES
Defendant
REASONS FOR DECISION
(Delivered 23 April 2009)
JENNY BLOKLAND CM:
Introduction and Outline of the Primary Issues Raised
1. Mr Va’clav Step (“the plaintiff”) claims Ms Vicki Stokes (“the defendant”) committed the tort of misfeasance in public office with malicious intent causing him an intellectual injury and loss of opportunity. Further, he alleges she defamed him. He claims a total of $30,000 damages ($20,000 for the alleged misfeasance in public office and $10,000 damages in relation to the alleged defamation). He also seeks aggravated and exemplary damages.
2. In short, the defendant was the principal of the Northern Territory Open Education Centre (“NTOEC”). The plaintiff had been studying at NTOEC in 2001 and 2002 and applied for enrolment in NTOEC in the second semester of 2003. He claims he satisfied all of the entry requirements and was “entitled to be enrolled”. He says the defendant refused to enrol him at that time and that she advised him no further enrolments would be available to him. He alleges the defendant refused to enrol him with the NTOEC in the first semester of 2004, despite the fact he “satisfied all the entry requirements, and was entitled to be enrolled”. He claims the defendant’s reasons for refusing his enrolment were not in accordance with criteria specified in information supplied to students and the decision was not made in accordance with the principles of “good public administration, was not justified, was unfair and unreasonable”. (Particulars of Claim, paragraph 4).
3. The plaintiff alleges the defendant’s decision was based on her personal bias against him as a result of complaints he made concerning the morality and legality of the contents of the “Development, Relationships and Sexuality” information book for the Health Unit in 2001, a subject that his daughter was studying. Further, he suggests the defendant’s personal bias arises from the fact that he made complaints about NTOEC, in particular, that NTOEC sent study materials to his daughter that were either late or not sent at all during 2002. He alleges the defendant’s refusal to enrol him constitutes the tort of misfeasance in public office with malicious intent.
4. His case is that as a result of the defendant’s decision, he was unable to study with the NTOEC for two years, (second semester 2003 – second semester 2005). As a result, he claims he was not admitted into a course of study at Charles Darwin University because the admission requirement for Charles Darwin University was the Northern Territory Certificate of Education. He claims to have suffered an intellectual and psychological injury; further, that his academic progress was arrested and consequentially he lost the opportunity to obtain the Northern Territory Certificate of Education. He alleges this resulted in lost opportunity to increase his future earning capacity.
5. The defendant denies the commission of the tort of misfeasance in public office and denies she caused an intellectual or psychological injury to the plaintiff. In particular, the defendant denies the plaintiff satisfied all the entry requirements and denies that there is something known as “an entitlement to be enrolled”. She denies she refused to enrol the plaintiff as alleged by him, but admits she advised the plaintiff there would be no further enrolments available to him. The defendant says that her reasons for refusing the plaintiff’s further enrolment were in part consistent with criteria specified in materials for prospective students. She asserts that other reasons for refusing his enrolment were not based on criteria specified in materials for prospective students, but her reasons were nevertheless legitimate and valid considerations in relation to the application.
6. The allegations of bias are denied. The defendant denies that the conditions pleaded by the plaintiff amount to an injury that entitles him to an award of damages and denies the plaintiff lost opportunity to increase his future earning capacity by reason of his failure to obtain the Northern Territory Certificate of Education.
7. In relation to the claim for defamation, the plaintiff says the defendant made defamatory statements to NTOEC staff, Northern Territory Department of Education Chief Executive Mr Peter Plummer and to the investigating officer for the Northern Territory Ombudsman. The part of the claim sourced in material that relates to the Ombudsman’s Office was struck out on 13 December 2007 (that is, paragraphs 10(k), (m), (n), (o)) of the Statement of Claim: (Transcript 13 December 2007). Most of the alleged defamatory statements are sourced in letters and memos where the defendant has described certain letter(s) written by the plaintiff. For example, the defendant wrote to the plaintiff stating that one of the plaintiff’s letters “constitutes an attempt to harass Ms Miles [a teacher at NTOEC] in the appropriate performance of her duties”; that the plaintiff’s letter “was discriminatory in that it was offensive, abusive and belittling to Ms Miles on the basis of her performance of her required duties”; that the plaintiff’s letter was “extremely unpleasant and an attempt to intimidate Ms Miles from her legitimate duties”; that it is “hypocritical” for the plaintiff to blame Ms Miles; that certain personal comments directed to Ms Miles were of an “abusive nature”; that the plaintiff’s letter constitutes “an attack on their personal and professional integrity, and as such, amount to harassment” and that as a consequence, the defendant instructed all staff that they were not to accept written correspondence from the plaintiff.
8. The complaint of defamation also relates to written advice from the defendant that personal vilification of staff, insults or threats will be referred to the Education Department’s “legal officer for advice on what further protection may be sought for NTOCE staff”. It is also alleged the defendant described an English assignment submitted by the plaintiff as “an obvious attack against staff”. The further allegations of defamation include statements by the defendant to the effect the plaintiff was unacceptably aggressive towards her and that a public display of aggression was witnessed by a number of staff members; that the plaintiff had become “threatening and abusive towards her”; and that the defendant had sought to explain her actions as “justified because of the foreseeable risks [the plaintiff poses] to the personal and emotional wellbeing of staff”.
9. The plaintiff claims he suffered distress and injury to his feelings because of the defamatory statements made by the defendant and is “afraid that the defamatory statements made by the defendant may negatively affect his interactions with the NTOEC staff, the Department of Education staff and negatively affect his academic career”.
10. In general terms, the defendant admits the words identified by the plaintiff are true in substance and in fact, but argues a number of those statements were published to the plaintiff alone or were published on occasions of qualified privilege and consistent with the defendant’s obligation to properly administer the NTOEC. The defendant denies stating the plaintiff was “unacceptably aggressive towards Ms Stokes, a public display that was witnessed by a number of staff members who have expressed concern about your connection with NTOEC”, alternatively if words of that nature were used, the qualified privilege is claimed. The defendant denies the distress, injury and negative consequences asserted by the plaintiff and says that the stress asserted does not amount to an actionable injury.
Evidence Concerning the Plaintiff’s Personal Circumstances and His Decision to Study at NTOEC
11. Mr Step gave brief autobiographical evidence as background to the events in question. Much of it is not strictly speaking directly relevant to his claims, but it does help to explain why he was in the position of studying at NTOEC at the same time as his daughter; and in part, assists to explain why he may react to circumstances and issues in a particular way and why he feels strongly, from his perspective, about some of the materials and other matters at NTOEC he felt compelled to take some action on.
12. He told the Court he was born in Czechoslovakia (as it then was) in 1951; that when he was three months old his father was arrested by the then Communist regime in Czechoslovakia and sentenced to fifteen years imprisonment. His mother committed suicide as a result of his father’s lengthy imprisonment and he was brought up by an uncle and aunt. He said this caused him emotional problems; he didn’t agree with his uncle’s and aunt’s political views. He said for financial and other reasons they had certain sympathies with, or were members of the Communist party. He considered the Communist regime to have caused the death of his parents. He said his father spent nine years in gaol, working in uranium mines during his incarceration. His father died three months after he was released from prison from diseases attributable to imprisonment. He developed a hatred for dictatorships and made reference to objectionable practices such as placing political opponents in gaol and to censorship. One can of course readily identify with why the Defendant feels strongly about this history. He said Western Governments and the United States were presented as evil at that time in Czechoslovakia.
13. He said he was a good student until he was sixteen years of age; he explained the impact of the Russian invasion in Czechoslovakia. He said as he matured, he realised how evil the regime was and he stopped studying. He said that to progress to higher study or to a better paid job at that time, a person needed to be a member of the Communist party. He worked as a labourer; he refused national service and spent about one week in a psychiatric hospital. He was a conscientious objector and was influenced by the Bible. He decided to follow the principles of Godly love and unselfish love of other people. He was imprisoned himself for five months for insulting members of the Communist Party. Eventually he left Czechoslovakia and was accepted for immigration to Australia in 1979. He became an Australian citizen in 1982. He settled in Darwin as the warm weather was good for a spine ailment he had suffered from.
14. After some travel, he told the Court he lived in Darwin on the beach with his then partner, a woman from Maningrida. They had a child, (Anthea Step – who gave evidence in these proceedings), but his partner returned to Maningrida when Anthea Step was a baby. He became a single parent. He told the Court that having Anthea gave him a purpose in life, as he believes children are a gift from God. He was happy to look after her as best he could.
15. After living and working at the YMCA camp across Darwin harbour, he and his daughter travelled. This included going to Czechoslovakia for a period. They then settled in Palmerston in rented accommodation and Anthea began school in Moulden Park School. Anthea began to get sick at school and after trying different schooling options, they moved into a camp Mr Step built at Middle Arm Peninsular. After some time, Anthea was enrolled in Katherine School of the Air and Mr Step educated her at home. They tried Woodroffe School for a time, but Anthea became sick again once she was in a class environment. He enrolled her at the NTOEC from about grade 7/8. He supervised her in her studies. She could effectively be schooled at their camp-home when studying through NTOEC, avoiding the illnesses she frequently suffered whenever she was in a school class room environment.
The Commencement of Studies by the Plaintiff at NTOEC
16. The plaintiff enrolled himself as a student at the NTOEC in 2001. He said this helped him assist Anthea as the subjects she was studying became more difficult. I was referred to the document “Enrolment and Fees”, (Exhibit P2, Doc 6, NTOC info sheet) under the heading “Who Enrols”, “Adults who wish to improve their education or to take courses along with their children” (T16, 10/12/07). Although Anthea Step was in grade 9, Mr Step enrolled as a mature age student directly into year 11.
17. The plaintiff was given information concerning the need to complete stage 1 and stage 2 units to complete years 11 and 12. (Exhibit P2 – 72B). The plaintiff completed two stage 1 units in 2001, Bridging Science 1 and Legal Studies (P2, 85). In relation to the subject English: Part 2, the 2001 Semester 2 Report noted:
“Va’clav is continuing in this subject and is expected to complete by 21 June 2002” and “Va’clav hasn’t commenced this subject yet as he has been completing English Part 1”.
The report on English Part 1 notes:
“Va’clav is continuing in this subject and is expected to complete by 14 December 2001. You continue to demonstrate a very thoughtful and conscientious approach to this subject so I am pleased that circumstances are allowing you to finish the course. The quality and presentation of your written work is commendable and I look forward to helping you further develop your writing skills and literary appreciation”.
18. Mr Step told the Court that throughout this period he was studying different units to those studied by Anthea, but he gave preference in his study time to assisting Anthea rather than concentrating on his own studies. During this period when they were both studying, he said they were having difficulties dealing with legal issues surrounding coronial proceedings associated with the death of Anthea’s mother. Anthea Step gave evidence that her father was tutoring her and supervising her in her studies. She said “he was essential in my studies, without him I wouldn’t be able to study” (T192).
19. It is not disputed the defendant, Ms Vicki Stokes is an experienced teacher and school principal. At the time of the hearing of this matter, the defendant was an educational consultant. By consent, her curriculum vitae was tendered (Exhibit D29). Ms Stokes was the principal of NTOEC at the relevant time. She explained NTOEC is the provider of distance secondary education in the Northern Territory, also offering vocational and training courses. At the time she was principal, Ms Stokes said there were about 1,000 students at NTOEC per year. NTOEC offered about 2,500 units each semester and there were 60 – 70 staff members. The delivery of the education was done by written text using mail delivery and individual telephone conversations between students and teachers. Multi-media delivery was still being developed.
20. The student body comprised students who wished to undertake broader studies than their school curriculum permits; students in isolated areas, including Indigenous students on communities and adult students, in particular, defence force students and prisoners. In terms of adult students studying the same subjects as their children, Ms Stokes indicated that there had been a previous arrangement at the school allowing for enrolments on this basis. Mr Step was the only person at the school on that particular basis during her time as principal of NTOC.
21. Ms Stokes said the object of obtaining year 11 and 12 at school in the Northern Territory is to obtain the Northern Territory Certificate of Education (NTCE) as the NTCE represents completion of school – (a graduation certificate) - and with the right mix of subjects, is effectively the entrance to university. She explained that for university entrance at the relevant time, school age students needed to complete 12 units at stage 1 and 10 units at stage 2 (of which five must be double units). This was a requirement to obtain a Tertiary Entry Rank (“TER”). She explained mature students could be given status for stage 1 subjects so they did not need to follow the same pattern. She said students in that category were required to take one humanities subject and one science subject within their five double units. Ms Stokes said that any mature student looking to the NTCE as a path to university should go straight into stage 2, as that was the quickest way to progress.
22. I find the evidence overall, (some which is discussed further in these reasons), discloses a dual motivation on the part of the plaintiff when he first enrolled, he wanted to be enrolled to assist his daughter, but also wanted to advance on his own education, especially improving his English. It is also clear as the evidence unfolded, a significant part of his intention shifted to the fulfilment of a personal goal to enter university himself. In relation to the advancement of his own skills, the plaintiff referred from the outset to be able to, in time, achieve a Northern Territory Certificate of Education (eg T 10/12/2007 17). Although assisting his daughter with her study, throughout much of the period in question, he was not actually studying alongside her, but rather taking various stage 1 subjects.
Complaints raised by the plaintiff and responses by the defendant
23. The plaintiff apparently felt very strongly about a number of educational materials and processes of NTOEC relevant to his daughter Anthea and her studies. Much of the hearing was devoted to evidence about those complaints. The plaintiff’s allegation (in part) is that the defendant responded to these complaints ultimately in misfeasance of public office by refusing the plaintiff further enrolment and by responding in certain ways alleged to be defamatory.
24. There is evidence the plaintiff went to see the defendant on or about term three in 2000 about a mistake in the year 8 Social Education booklet concerning an international boundary noted in the materials as the Volga River. The defendant said she acknowledged to the plaintiff this boundary should have been recorded as the Ural mountains. The defendant told the plaintiff the mistake would be corrected, however, the plaintiff said the booklets would have to be recalled, destroyed, reprinted and re-issued. According to the defendant, this led to Mr Step being verbally abusive to her, including in a raised voice calling her (and she is quite open about not recalling the precise terms), either a fascist, Communist or a Nazi. The defendant said she was somewhat taken aback by this. The plaintiff is also unsure about what he actually said. He denies using the term fascist or Communist, but agrees he may have been referring to Nazi attitudes such as the Nazis, who at Nuremberg, claimed they were following orders (T 153). In any event, the plaintiff appears to accept there was an altercation over the error in the workbook and appears to accept he can be verbally aggressive. He qualifies any apparent acceptance of this in that he means no more than he forcefully puts his views (T 148-150).
25. Mr Step made a number of comments on the “Development, Relationships and Sexuality” study materials that were part of the health unit that Anthea Step was enrolled in. He sent these comments to Ms Rudwick, a staff member at NTOEC who brought them to the defendant’s attention. In those comments the plaintiff alleges certain errors, but also alleges immorality, illegality and expresses religious opinions in relation to some of the unit content. The relevant workbook and DVD are before the Court. The DVD was played before this Court in these proceedings. For comprehension of these reasons, I set out the plaintiff’s written comments:
COMMENT NO 1 YEAR 8 HEALTH
INFORMATION BOOK says: “The physical changes that occur at puberty were covered in more detail in year 8” (page 15) and “the actual anatomy of the male and female reproductive systems was covered in year 8 Health” (page 41).
Year 9 Health Course obviously assumes that students have studied REPRODUCTIVE SYSTEMS in year 8. For example QUESTION 17 OF UNIT TEST uses word “CERVIX” – but this word was not used nor explained anywhere in year 9 Health Unit One!
My daughter hasn’t done year 8 Health about REPRODUCTIVE SYSTEM because it was not offered to her.
I WANT TO KNOW WHY ANTHEA WAS NOT OFFERED YEAR 8 COURSE ABOUT REPRODUCTIVE SYSTEM BEFORE SHE WAS ASKED TO DO YEAR 9 COURSE ‘DEVELOPMENT, RELATIONSHIPS AND SEXUALITY’?
COMMENT NO 2 RISK TAKING
Both myself and my daughter were distressed by video “RISK TAKING”. My daughter left before it was over.
Those crazy people say that they “yell in the face of life”. But no, they don’t! They yell in the face of DEATH.
Even more distressing were questions asked by Ms Kate Miles: “After viewing the video, write down, in the space provided, why do you think that these people RISK DEATH (and fairly OFTEN ACHIEVE IT!). In your response tell me if it is something that YOU WOULD LIKE TO TRY …” (RESPONSE BOOK 1, PAGE 16).
Ms Miles asks 13 and 14 years old students whether they would like TO ACHIEVE DEATH!
This is SICK, SICK, SICK!
COMMENT NO 3 SLUTS AND STUDS
Ms Miles writes: “The terms ‘SLUTS and ‘STUDS’ still seem to be used today”. (RESPONSE BOOK 1, PAGE 21).
It is one thing that some rude students use such derogatory terms. Quite another thing is that TEACHERS use them as well.
Teachers should be moral examples to students, they should discourage students to use foul language.
Teachers should not follow rude students into the gutter of bad language!
COMMENT NO 4 CONCEPTION
The Information book says: “Conception occurs when a special female cell, the ova or egg, meets the special male cell, the sperm” (page 40).
The Response book 2 says: “One sperm finally burrows its way through and genetic information from both parents fuse. Conception has occurred” (page 6).
Both the above statements are WRONG. They describe FERTILIZATION, not conception.
“CONCEPTION is the fertilisation of an ovum by a sperm in the fallopian tube FOLLOWED BY implantation in the WOMB”.
“FERTILIZATION is the union of male and female gametes during sexual reproduction, to form a ZYGOTE”. Woman is pregnant when she is “carrying a FETUS within her womb.
(Quotations from COLLINS ENGLISH DICTIONARY, 1991 EDITION)
When a woman carries a ZYGOT, she is NOT PREGANT, she has NOT CONCEIVED. Only when zygote “becomes embedded in the lining membrane of the uterus” the conception has occurred. From that moment, zygote is called EMBRYO. (Quotation from THE FAMILY MEDICAL REFERENCE BOOK @ 1987)
NOTE: Anthea answered QUESTION 13 OF UNIT TEST according to information given in the Information book. But her answer (a) is WRONG. Correct answer is (c).
COMMENT NO 5 READINESS FOR SEX
In lesson 13 Ms Kate Miles asks repeatedly 13 and 14 years old students: “… are you ready for sex?”
Ms Miles knows about the law against sexual intercourse of people under 16 years of age; she mentions it in Information Book, page 53.
Criminal Code Division 2 of Part V deals with OFFENCES AGAINST MORALITY. These offences include SEXUAL INTERCOURSE and gross indecency between any male or female of ANY AGE and a female UNDER 16 YEARS OF AGE, whether in public or in private. Maximum penalty: SEVEN YEARS IMPRISONMENT (s 128).
Amazingly, Ms Miles refers to this law only as “Another factor worth remembering” when she lists many reasons for and against having sex and encouraging students to decide whether they are ready for sex. (INFORMATION BOOK, PAGE 53).
Kate Miles writes to 13 and 14 years old students: “Still the question remains, are you ready for sex? Part of becoming responsible for yourself is making healthy choices about your life. This includes making choices about your sexuality”. (INFORMATION BOOK PAGE 51).
Kate Miles also asks students to decide whether 15 years old girl is ready for sex. (RESPONSE BOOK 2, PAGE 13).
Kate Miles is telling students that they and 15 years old girls are free to choose an activity for which they could be PUNISHED BY IMPRISONMENT FOR SEVEN YEARS!
Kate Miles writes that if a 15 years old girl decides to go ahead with sexual relationship, her FIRST consideration would be SAFE SEX. (INFORMATION BOOK, PAGE 53).
Shouldn’t that 15 years old girl be concerned in the first place about NOT TO BE CAUGHT BY THE POLICE having sex and face potential seven years in jail?
Finally, Ms Miles asks students to put ten activities related to readiness for sex in order from the most to the least harmful. She lists several possible consequences of sexual intercourse like: “catching STD”, “unwanted pregnancy”, reputation damaged from sex”. But she totally fails to mention possible LEGAL CONSEQUENCES of sexual activity for people under 16 years of age. (RESPONSE BOOK PAGE 17).
It is obvious that Ms Miles does not take THE LAW seriously. It seems that Ms Miles thinks that the police and the courts do not ENFORCE the law against sexual intercourse of people younger 16 years.
If Ms Miles thought that there was a possibility the police and the courts would enforce this law, she would explain to the students under 16 years of age that according to NT LAW they have only ONE CHOICE: NO SEX.
I wonder whether Ms Miles is aware of another law: “It is an offence to ENCOURAGE a child under 16 years of age to have sexual intercourse or commit, perform or engage in an act of gross indecency”. Penalty: 5 years imprisonment when offender is over 18 years of age (s 131).
I am afraid that Ms Miles has come awfully close to breaking that law. She ENCOURAGES 13 and 14 years old students to CHOOSE between HAVING SEX and not having sex! The NT LAW gives no such choice!
I also wonder whether NTOEC is aware that it is also an offence TO PUBLISH AN INDECENT ARTICLE (s 125C). An indecent article is one that promotes crime or incites or instructs on matters of crime. Maximum penalty is 2 years imprisonment.
COMMENT NO 6 SAFE SEX
Ms Miles writes: “Safe sex is using protection that will prevent the spread of Sexually Transmitted Diseases” (INFORMATION BOOK, PAGE 54) and “ … condoms offer protection against pregnancy and STDs …” (PAGE 59).
There are similar statements like these also on pages 55, 56 and 57.
All these statements are very misleading. Statistically condoms function properly only 95% of the times they are used. That means ONCE IN TWENTY TIMES they are used, CONDOMS FAIL for one reason or another!
Would anyone feel safe flying with an airline which planes crashed once in every 20 flights? I think that such an airline would not operate for long.
The truth is CONDOMS ARE NOT RELIABLE and should not be recommended!
Ms Miles also writes: “THE ONLY WAY of avoiding of these diseases is by obtaining from sex or using condoms every time you have sex”. (INFORMATION BOOK, PAGE 55). I wonder why Ms Miles omitted THE BEST WAY of avoiding STDs – while having the best sex: Have sex only with a person you are married to and whom you can trust!
NOTE: All eight answers offered to questions 20 and 21 in UNIT TEST are WRONG – and the only RIGHT ANSWER (sex with a faithful spouse) is not offered!
COMMENT NO 7 FIVE AREAS OF HEALTH
Ms Miles lists five areas of health (INFORMATION BOOK, PAGE 6): MENTAL, SPIRITUAL, EMOTIONAL, SOCIAL AND PHYSICAL. But when Ms Miles discusses possible negative consequences of sexual activities, she is mainly concerned about physical health.
Ms Miles is a little concerned about emotional and social health but she fails totally to discuss possible influences of sexual activities on MENTAL OR SPIRITUAL HEALTH.
Humans have only LIMITED EMOTIONAL CAPACITY. People who have had a multitude of sexual partners before marriage become emotionally EXHAUSTED and then they are not capable of full emotional involvement in a marriage – and they often end up in a DIVORCE. Extramarital sex is damaging emotional health.
Extramarital sex also destroys people SOCIALLY. It breaks up families and because a family is a basis of a stable society, extramarital sex destabilises the whole nation.
Extramarital sex can lead also to MENTAL disturbances, even illnesses, depression, anxiety, jealousy and consequent murders and suicides.
But most important of all areas of health is SPIRITUAL HEALTH. (Spiritual = of invisible power). Spiritual health involves things like LOVE, JOY, PEACE, PATIENCE, KINDNESS, GOODNESS, FAITHFULLNESS, GENTLENESS AND SELF-CONTROL.
People who are involved in extramarital sexual relationships are/become SPIRITUALLY SICK.
Instead of LOVE, there is LUST and SELFISHNESS.
Instead of PEACE, there is TURMOIL.
Instead of PATIENCE, there is “I WANT IT NOW!”
Instead of KINDNESS there is HURTFULNESS.
Instead of FAITHFULNESS there is BETRAYAL.
Instead of GENTLENESS there is CALOUSNESS.
Instead of GOODNESS there is EVIL.
God intended SEX to be a BOND of two married people who love and are faithful to each other.
Extramarital sexual relationships are destructive, they cause SPIRITUAL SICKNESS which affects negatively all other areas of health.
COMMENT NO 8 RIGHT OR WRONG?
Ms Miles repeatedly tells students that there is no RIGHT OR WRONG: “There are no real right or wrong ways to deal with love!”. (INFORMATION BOOK P 27) and “It should be stressed that there can be no general right or wrong …” (regarding dealing with pregnancy (INFORMATION BOOK P 63)
Ms Miles also encourages students repeatedly to decide themselves what is right or wrong – for them. She encourages students to decide whether they want to risk death, whether they want to be heterosexual or homosexual (INFO BOOK PAGE 25), whether they are ready for sex (INFO BOOK PAGE 51), whether they want to murder unborn babies or not (INFO BOOK PAGE 63).
The Bible says that the decision to decide themselves what is right and wrong, good and evil was the first CRIMINAL ACT humans committed. (GENESIS CHAPTER 3). It is also the underlying reason for all crimes.
The decision what is right and wrong morally belongs to God only.
In the Bible are revealed the laws and judgements which are relevant to subjects discussed in year 9 Health Unit 1:
1. “YOU SHALL NOT MURDER” (Exodus 20:13). This law includes SELF-MURDER and also senseless risking of life as shown in RISK TAKING video.
2. “If a man SEDUCES A VIRGIN who is not pledged to be married and sleeps with her, he must pay the bride-price, and she shall be his wife”. (EXODUS 22:16)
“If a man happens to meet a VIRGIN who is not pledged to be married and rapes her and they are discovered, he shall pay the girl’s father 0.6kg of silver. He must marry the girl, for he has violated her. He can never divorce her as long as he lives”. (DEUTERONOMY 22:28-29).
This judgement of God is very lenient, especially if compared to Northern Territory Law against sexual intercourse of people under 16 years of age, which carries penalty of SEVEN YEARS IMPRISONMENT.
Notice however that there is no room for MULTIPLE SEXUAL EXPERIENCES outside marriage, because the first sexual intercourse establishes the marriage. And sexual intercourse of married people with other people than their spouses is called ADULTERY and the punishment for adultery is severe: “If a man commits adultery with another man’s wife – with the wife of his neighbour – both the adulterer and the adulteress must be put to DEATH”. (LEVITICUS 20:10). The harshness of the punishment reflects the SERIOUSNESS of the offence in God’s eyes.
3. “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their heads”. (LEUITICUS 20:13). Homosexuality is a very serious offence.
4. “If men who are fighting hit a pregnant woman and she gives birth prematurely … and there is a serious injury, you are to TAKE LIFE FOR LIFE …”. (EXODUS 21:22-25).
God indicates that the life of UNBORN CHILD has the same VALUE as the life of GROWN MAN! To kill the unborn child is a serious crime. “Termination of pregnancy” (INFO BOOK PAGE 63) is MURDER!
The purpose of the above laws and judgements is to discourage people from making WRONG MORAL CHOICES and to protect the society from people who decide to make wrong choices anyway.
Even Ms Miles acknowledges that the choices she encourages young people to make can result in death, imprisonment, contracting diseases, unwanted pregnancies and consequent “terminations of pregnancies, that is murders. What a sad, sad result of WRONG CHOICES!
However, God is almighty and also merciful. He is not willing that even criminals should perish without a chance for re-education and rehabilitation (SEE COMMENT NO 9).
COMMENT NO 9 STAGES OF HUMAN DEVELOPMENT
THE INFORMATION BOOK shows ten stages of human development and growth. But the Bible reveals that there are THREE MORE STAGES than that: (INFO BOOK PAGE 9).
11. RESURRECTION: “Multitudes who sleep in the dust of the earth will awake: some to everlasting life, others to shame and everlasting contempt”. (DANIEL 12:2).
God is merciful and almighty, he will make alive again all people who ever lived – regardless of what crimes they had committed.
12. LEARNING TO LIVE GOD’S WAY: “Many motions will come and say, “come let us go up to the mountain of YAHWEH, to the house of the God of Jacob. He will teach us his ways, so that we may walk in his paths”. The law will go out from Lion, the word of YAHWEH from Jerusalem. He will judge between many peoples …”. (MICAH 4:2-3).
Resurrected people will be re-educated according to the law of God. God will make sure that all people understand properly what is right or wrong.
13. THE FINAL JUDGEMENT. God will judge whether people will have made the right choices and put them into practice. People will be still free to choose. People who choose to be still disobedient to God’s laws “will go away to eternal punishment” (death). The obedient will receive “eternal life”. (MATTHEW 25:46)
COMMENT NO 10 THE CONCLUSION
Year 9 Health Unit 1 Development, Relationships and Sexuality is a very confused piece of work.
It contains instructions how to live unhealthy, immoral and disastrous life.
It should be discarded and the task of writing of a new year 9 Health Unit 1 should be given to a person with MORAL ATTITUDES who would encourage THE RIGHT, LEGAL AND HEALTHY CHOICES.
26. Mr Step’s evidence before the Court confirmed that these comments represented his views on the materials. The defendant gave evidence that in consultation with another staff member, she referred a number of the matters raised by the plaintiff to be reviewed by the appropriate school committees. The defendant also explained that NTOEC does not offer a religious curriculum. She told the Court she had been of the view that perhaps it would have been more appropriate for Anthea Step to be at a school offering a religious curriculum. She explained a number of the comments made by the plaintiff were considered in the context of whether the booklet should be changed.
27. Mr Step wrote a letter to the teacher concerned with this unit, (Ms Kate Miles) with a copy to another teacher, Ms Christensen. This letter was referred to the defendant who decided to take certain steps to protect Ms Miles from reading the letter if she chose not to. The intercepted letter, dated 29 May 2001 from the plaintiff to Ms Miles reads as follows:
Ms Kate Miles,
I have decided that you are not a fit and proper person to be a teacher of my daughter Anthea.
I have studied in detail together with Anthea the unit “Development, Relationships and Sexuality”, which was authored by yourself. I have found the contents of that unit disturbingly misleading, immoral, criminal and evil; and I think that it has been so because you are disturbingly mislead, immoral, criminal and evil! It is my duty as a parent to protect my daughter from influence of people like yourself.
When Anthea was sending the unit “Development, Relationships and Sexuality” to NTOEC, I attached my questions and critical comments to it. Mrs Rudwick did not respond to them, nor did anyone else. I enclose a copy of those my questions and comments so that you can try to understand my decision that you are not fit and proper person to teach Anthea. (I doubt that you will).
When Anthea started studying unit “Drug Education” authored again by yourself, I found many teachings in it incorrect and misleading; but I will not waste my time by writing about them, as my comments have been ignored in the past. I am just informing you that Anthea will not be studying unit “Drug Education” any more, nor will she be studying anything else authored by yourself in the future.
When on 25 May 01 Anthea told you that she was not going to continue to study units authored by yourself, you argued that she had to complete a certain number of subjects to pass the year 9 level. I am informing you that Anthea does not study just to pass levels – she studies to learn correct, scientific, moral, legal and good teachings. This is obviously impossible by studying your literature.
Ms Miles, I have given to my decision to reject you as Anthea’s teacher plenty time to mature and I am convinced that it is correct – whatever the consequences there might be for Anthea or myself. We will not be influenced by perverted people like you. We don’t want to read or hear anything from you any more. Get out of our lives.
28. The defendant said she had never read a letter like that before; she was concerned the plaintiff was vilifying Ms Miles who was a young teacher. In an attempt to limit contact between the plaintiff and certain of the teaching staff, the defendant wrote a memo to NTOEC staff on June 5, 2001 as follows:
People
Mr Step recently sent a challenging letter to a teacher here. As Principal, I consider that the correspondence was an attempt to harass and intimidate the teacher from completion of legitimate duties. I have written to Mr Step informing him that all future correspondence from him to staff here must be directed through me. Please do NOT accept written correspondence directly from Mr Step, rather send it to me – I will ensure that any items of correspondence do not accrue in my pigeon hole, they will be vetted for offensive material and handed on (or returned to Mr Step) forthwith. I will only act on personal abusive comments, and will not be involved in any intellectual interpretations or arguments.
(DISPATCH STAFF: Please note this instruction and direct correspondence from Mr Step through me in the first instance. Work received from Anthea Step should go directly to the Faculty concerned as normal procedure, unless there is an obvious letter from Mr Step attached.)
I appreciate that this is an extraordinary process but my judgment is that such actions are justified because of the foreseeable risk to the personal and emotional wellbeing of staff.
I have also advised Mr Step that he may contact staff by telephone, but that any complaints of harassment or intimidatory behaviour will be dealt with directly and may result in a review of his enrolment in NTOEC courses. I trust your judgement in this area and request that you pass any concerns promptly to a member of senior staff.
Mr Step may take my letter as an opportunity to review his approach to staff here and hence moderate his behaviour. If that occurs I will review this instruction to staff accordingly.
Please address any concerns to me.
29. Further, the defendant wrote to the plaintiff on the same date (June 5, 2001) as follows:
Dear Mr Step
I refer to your letter of 29 May 2001, addressed to Ms Kate Miles at this Centre. You sent a copy of the letter to Assistant Principal Ms Sherrill Christensen, who showed it to me before Ms Miles received her copy. I have discussed the letter with Ms Miles, and at this stage she has decided not to read it, based on my undertaking that I would convey to you the following points:
1. As Principal of the Northern Territory Open Education Centre I consider that your letter constitutes an attempt to harass Ms Miles in the appropriate performance of her duties. I believe that your letter was discriminatory in that it was offensive, abusive and belittling to Ms Miles on the basis of her performance of her required duties. Your behaviour is unwelcome to me in that I was obliged to read the letter in the course of my duties. I found it to be extremely unpleasant and an attempt to intimidate Ms Miles from her legitimate duties, writing materials designed to meet the Northern Territory Board of Studies Approved Health curriculum.
2. Your complaints about exposing your daughter Anthea to unwelcome material are unrealistic, because as supervisor you decide which NTOEC materials are made available to Anthea. I know that you have given comprehensive consideration to the contents of the Health units that Anthea has completed, so it is entirely hypocritical for you now to blame Ms Miles for exposing Anthea to challenging ideas and concepts. As is set out in the warning at the start of the Health materials, you were free to contact the teacher Ms Rudwick at any time to discuss your concerns and you were free to withdraw Anthea from the subject at any time, as you have now done.
3. In light of the abusive nature of your personal comments directed to Ms Miles, I will oversee all future correspondence from yourself to members of this Centre’s staff. In future you should address all correspondence to staff members through me, and I will decide whether to pass them on, or return them to you instead. I will be issuing an instruction to staff that they are not to receive direct correspondence from you. Anthea may continue to deal directly with her teachers, and you may continue to make telephone contact with your teachers. However if I receive reports of an intimidatory comments from you in conversations with staff, I will review your continued enrolment in NTOEC courses.
4. Ms Rudwick will consider your various comments about the Health units as part of her materials review process at the end of the unit. Where there are mistakes in fact or continuity, these will be corrected in the revised version for the next print run. We will not be including your interpretations of religious issues in the revised materials.
30. On the memo to staff, Ms Stokes said it represented her honest view of the situation as an attack on Ms Miles’ professional integrity, a personal attack on her and an attempt to intimidate her. On use of the word “harass” the defendant said she meant a personal attack or attempt to upset Ms Miles. The defendant said she thought the memo necessary to prevent stress that could be avoided. She said stress was a risk she needed to deal with as the principal of NTOEC with a duty of care to staff. The defendant said that if Mr Step had not been a student she would have responded along the lines of a trespass notice and refusal to respond to his correspondence. Because he was a student and a parent of a student, Ms Stokes said it was a complicated process to try and avoid conflict between his role as a parent and his role as a student. She said his intimidating behaviour towards staff and concerns about staff could lead her to a review of his enrolment and she wanted to give him a clear warning of that. She said her views expressed in the letter were beliefs that were honestly held.
31. Ms Stokes gave evidence of another incident in April 2002 concerning the plaintiff and late dispatches of materials. Certain materials had been delayed. It was common ground that this was an ongoing problem at NTOEC. In relation to some of the units with late materials, Ms Stokes said the plaintiff had been advised that some of those materials would not be ready until the second semester. Arrangements had been made for the plaintiff to pick up the materials from NTOEC, as the plaintiff had indicated he did not want them posted. When he came to pick them up, a staff member reported the plaintiff shouting at her. The defendant heard him shouting. When the defendant came down to attend to the plaintiff, he started shouting again and Ms Stokes says she told the plaintiff he had the dispatch; that it was “all there”. She said the plaintiff was sitting down at the interview table at the time. She said he started yelling about his complaint with the dispatch and she says she tried to explain the situation to him but he just yelled, waved his hands around, said he did not want to see her and didn’t accept what she was saying.
32. Ms Stokes said she obtained some further information from the English teacher concerned with the materials and went back to the plaintiff to explain that to him. He continued shouting and being abusive. She said as well as waving his arms around, he was moving objects and waving books in the air. She said he was also thumping the table making it most uncomfortable. She believed he would be physically violent towards her. She said his shouting led a number of male teachers to attend the area. She said she asked Mr Step to leave about ten times and then asked her secretary to call police. He continued to yell and dialled triple O on his own mobile phone to get police to come and obtain Anthea Step’s dispatch. The police arrived and at about that point, Mr Step stopped shouting, got up and went to the police. Police asked Ms Stokes if she wanted to lay charges but she said she just wanted him off of the premises. She said she was concerned he was both a student and a parent and it was therefore complicated. After receiving advice, she took out a trespass notice against the plaintiff. (P2, Doc 92). She also prepared a report to Mr John Dove, the General Manager of Schools (P2, Doc 93-95).
33. In May 2002 the plaintiff sent letters to two teachers (Ms Christensen and Mr Sharma) at the NTOEC: (P2, Doc 102-109). The Defendant said those teachers became concerned about the content. Some of the letters complain about a maths text that smelt, giving Anthea Step headaches and an allegation by Mr Step that one of the Maths teachers had agreed to pay $30.00 to photocopy a text book. There was a detailed history given in evidence about the issue of whether there had been agreement for NTOEC to pay for photo copying of the text. Certain other allegations about being an “uncaring” teacher are made in those letters as well as statements along the lines of Anthea Step being “abused” because of not being sent work on time and because of her sensitivity to chemicals. The defendant wrote to the plaintiff on 17 May 2002 expressing concern about those letters and implemented a further procedure where all letters from the plaintiff would be given to her first. That letter also refers to a further incident where the plaintiff effectively resubmitted a copy of his letter to Ms Christensen as an English assignment. The letter from the defendant states: “If you submit any further unacceptable material I will withdraw your enrolment from NTOEC and refund your 2002 school fees.”
34. It is clear and I accept the plaintiff made many complaints to NTOEC. These complaints are put forward in the plaintiff’s case by him partly to show what he considers to be the real reason for the defendant’s failure to enrol him in 2003. I accept the complaints were dealt with in the way the defendant has described for the reasons she describes. The defendant’s written responses to the plaintiff and to staff members concerned are before the court. The defendant appeared sincere and matter of fact before the Court in her descriptions of what had transpired and reconciling the difficulties of the needs of managing NTOEC with those of Mr Step and Anthea Step. She answered questions in both examination in chief and cross-examination with a significant degree of detail, bearing in mind many of the events are well in the past. The strongest action in my view taken by NTOEC throughout the above period was the trespass notice in April 2002 and limiting the contact between the plaintiff and staff of NTOEC. The defendant said the trespass notice, indeed all trespass notices were renewed on an annual basis.
Evidence Concerning the Defendant’s Decision Not To Approve Further Enrolments
35. The defendant had been away from NTOEC during 2002 as she was principal at Darwin High School in semester 2 of 2002. She returned to NTOEC in 2003. On her return to NTOEC, as advised in the handover folder she was made aware Mr Step’s enrolment as a full time student had been accepted. The defendant was approached by staff members about whether the courses could properly be provided for the plaintiff who, they believed, wanted to go to university. (T 21 Feb 2008, 12). The defendant said she thought a mistake had been made because mature aged entry to university was no longer via matriculation through year 12.
36. Her evidence on her initial impression about this was as follows:
“In that folder there was advice that Mr McClane (sic) had accepted Mr Step’s enrolment as a fulltime student. I was approached by a couple of the staff members, and I don’t remember who, it’s a long time ago, but there was questions of concern that Mr Step wasn’t to be a fulltime student. There were concerns whether we would be able to or whether as a centre we’d be able to provide him with the courses that he wanted to go to university. I – my immediate response was there has been a mistake made that – because mature aged entry to the university was no longer via matriculation through a year 12 certificate. That had changed a good 20 years before. The reforms of the university system in the late 1980s and the reforms of the Australian Qualification System in the early 1990s had removed the need for mature aged people to go back to school in order to gain access to higher education. That was the – so I thought there had been a mistake made. I checked with the career counsellor and she had given that advice to Mr Step”.
37. Ms Stokes said she checked on the career counsellor’s advice given to the plaintiff, she was told that advice was that he didn’t require the NTCE to go to university and that he should access the entry test for mature aged students, the (“STAT” test). If he did that test and obtained a score of 145 or above, he would have access directly into higher education courses. If his score was below that, he could access via the Tertiary Enabling Programme. This programme did not charge HECS and was a low cost access programme.
38. The defendant said that it was brought to her attention that the plaintiff had applied to complete the NTCE because he wanted to go to university. She thought his enrolment form indicated the same. She looked at his subjects and saw he was still taking stage one courses which she said, are not part of the tertiary entrance requirements for adults. She said even if adults wanted to complete the NTCE, all that was required was five double stage two units. She said given Mr Step wanted to go to university, it did not make sense for him to be doing stage one units. She said this also had resource implications for NTCE long-term as he would be at NTCE for an extended period. She told the Court stage one subjects do not contribute to the Tertiary Entrance Rank (TER). She also gave evidence that the scale process of stage two subjects meant that any results Mr Step did achieve would be scaled back and he would have difficulty obtaining the required 59 TER for university entrance.
39. Ms Stokes said she consulted the careers advisor who had taught Mr Step and she had presumed there was a reasonably positive relationship between the plaintiff and the careers advisor. She wrote to the plaintiff advising him about her decision over his enrolment (P2, Doc 176). That letter is set out as follows:
“Dear Mr Step
I am responding to your letter of 3 February 2003 to our Senior Coordinator Mr Downey requesting enrolments in more subjects for Semester 1.
I am not prepared to approve any extension of your current enrolment for 2003. I believe that your continued enrolment at NTOEC is unnecessary, because you completed your secondary education in Europe before you came to Australia. You have now established sufficient success in secondary education through NTOEC to move forward to further education or training.
I believe that you are now suitably prepared to approach NTU for adult entry to their courses, in either higher education or technical and further education. There are two pathways that you can take for adult entry – via the STAT test (contact Susana Lu-Dizon on 8946 6878 for details) or the Tertiary Enabling Program which can be studied externally (contact person is Moya Deetlefs on 8946 7187). If you have general enquiries about studying at NTU, the Uni Info Shop would be able to assist (Freecall 1800 061 963).
Your 2003 NTOEC enrolments in General Maths A, VET Maths and Bridging Science 2 have already been accepted, so you may finish off those courses. No further enrolments at NTOEC will be available for you once those courses are completed. If you do not wish to continue with your current enrolment, I shall arrange full refund of fees on return of all materials.
Yours faithfully
Vicki B Stokes
Principal”
40. Further, in her evidence she explained, it was critical to university study that the plaintiff had completed the stage one English unit and could read and write English at a technical level. She said she understood that one of the plaintiff’s intentions was to improve his English. She was satisfied he had the appropriate skills. She said she knew he was “basically an intelligent person” and that doing Year 11 units was a waste of NTOEC resources, as he could go directly to university.
41. The defendant rejected all suggestions put to her that she had refused further enrolments because of any prejudicial view she had formed of the plaintiff. The Defendant was cross examined at length on her reasons for advising the plaintiff about not being able to enrol further; this included cross examination on various correspondence with Department of Education officials and other agencies that referred to the history of incidents concerning the plaintiff. The Defendant strongly denied that the history between the plaintiff and NTOEC was the reason for her decision.
42. A significant issue the plaintiff had with the defendant’s decision appears to stem from the fact that he hoped to study law at university and he thought if he continued at NTOEC, he would achieve the marks in year 12 required to study law. He told the Court his results in 2001 and 2002 “were not too good”. He said he had problems studying at that time as the Coronial Inquiry concerning Anthea’s mother was progressing. He said he didn’t like the way their lawyer was conducting the coronial, so he applied and was given leave to appear himself at the Coronial. He said he was frustrated about his level of knowledge of the law and started making inquiries about studying law. (Ex P2, Doc 129, 21 October 129). Under the university entry requirements (Ex P2, Doc 170) he noted the minimum requirements were successful completion of the NTCE (or equivalent) and a TER of 60 or higher; successful completion of TAFE award of Certificate Level 4 or higher; attainment of a STAT score of 145 or greater; successful completion of at least one year of full-time study (or equivalent) of an under-graduate degree/diploma course.
43. He said it wouldn’t be any good if he passed the STAT test but wasn’t fully prepared for study. He said he thought the safest way was to try to obtain the NTOEC within two years and obtain a TER of 70 or more so that he would automatically be enrolled in law. He applied for admission into the law course in 2003 (Ex P2, doc 178).
44. The plaintiff said he also noted in the Bachelor of Laws information from NTU (Ex P2, doc 269) the statement: “If English is not your first language, but you have studied the last two years of secondary school in Australia (years 11 and 12) in the English language or have successfully completed a TAFE of 12 months duration in Australia then you will not be required to provide further evidence of language proficiency.” He said he thought this would apply to him. In cross-examination he was asked about the fact that that section of the document was headed “English Language Requirements for International Students”. He agreed he was an Australian citizen and I take that by implication he agreed he was not an “International Student”. Still, he said, he thought that principle would apply to him. He also noted the statement “Admission as a candidate for the degree of Bachelor of Law is subject to such quotas and selection requirements as may be set by the school from time to time”. He said the law school could give priority to people who have the Certificate of Education and a higher TER. He thought “the surest and fastest way to get to study law” was through the NTOEC.
45. He said the other reason he wanted to study at NTOEC was that Anthea would be studying year 11 and he could study with her. He referred to his enrolment being accepted and the letter of 1 December 2002 advising of the non-availability of certain units (Ex P2 Doc 142). That letter gave a phone number for confirmation that Mr Step said he used. He also gave evidence of taping conversations between himself and NTOEC staff as he said he had previous problems, primarily over the late provision of materials: (Exhibit P2, doc 146-149 – transcript of phone recordings taken by the plaintiff). Overall, in relation to the initial acceptance of his enrolment, the plaintiff said he was happy to be able to finally study the same subjects as his daughter.
46. In cross-examination the plaintiff agreed his plan was that by 2006 he would be commencing to amass a score by way of year 12 study to go to university. He agreed he wanted to study stage one subjects in 2003, 2004 and 2005. He agreed he did the STAT test in 2003 that gave him a score of 166. He agreed it gave him admission to university. The plaintiff continued to qualify this acceptance of a path of admission to university because it was not to the course he wanted (the law course). He agreed he was enrolled in the Bachelor of Aboriginal and Torres Strait Islander Studies. He said he couldn’t enrol in other courses at that stage because he and Anthea were living in their isolated bush camp and he could only study courses that were offered externally so he could be with her. He agreed the “number one” reason he wanted to be at the camp was to tutor Anthea. He appeared to accept the proposition that in 2003, even if he had been offered the law course or other courses, he wouldn’t have done them because he was tutoring Anthea (transcript 12/12/07 at 124). He told the Court the law degree is now offered externally, but was not then. He said that was why he enrolled in the Bachelor of Aboriginal and Torres Strait Islander Studies – it was external.
47. The plaintiff was directed to comments noted on his enrolment for NTU (P2, doc 254), “Application denied. Student advised that would be admitted to law if completed full year of another degree at credit average.” He agreed he then enrolled in and started the Bachelor of Aboriginal and Torres Strait Islander Studies for semester 2 of 2003. He agreed he did not do well in his first assignment. It was put to him that he had developed a similar pattern at NTOEC of commencing subjects and then if he didn’t do well, withdrawing from the subject. He agreed for example that he enrolled in English six times. He said each year there was a different reason for withdrawing or extending the subject. He agreed he had to leave the Bachelor of Aboriginal and Islander Studies as he failed.
93. In relation to the memo to staff (Exhibit P2. Doc66) containing the words “my judgement is that such actions are justified because of the foreseeable risk to the personal and emotional wellbeing of staff”: (Statement of Claim Paragraph 10 (l)). Although published to the staff of NTOEC, the memo is clearly written and sent with the motivation of protecting and informing staff of the reasons for the concerns about the plaintiff and in my understanding of the authorities would be protected by qualified privilege if found to be defamatory. In any event I am not persuaded these words carry the imputation alleged.
94. If I am wrong concerning the conclusion that the various alleged defamatory statements do not carry the imputation of bad character, or if I am wrong in finding the plaintiff is bound by the imputation and indeed if it were to be found that any of the statements complained are held to bring the plaintiff’s reputation into disrepute or a lowering of his reputation, I agree with the submission that truth is available as a defence. I do not come to this conclusion lightly. Clearly the plaintiff is someone who has struggled with early life deprivations, lived under an oppressive regime, migrated to a new country and despite that, has taken very seriously and conscientiously his duties as a father and a citizen. The plaintiff at this level exhibits significant strength of character. What he has said in this matter however, is that when he considers that he makes truthful comments to people, people can’t consider it an attack on them. Even if people find what he says is offensive, if it is true, “there’s nothing wrong with it.”(T 177). He also said, if what he says is true and people are offended, “its not my fault. No, its their fault.” and “Maybe its good for them, I reckon. I’m even obliged to tell people so they – because see people don’t see their own mistakes, other people see them better so I’m even obliged to tell them so they can change their ways.” (T 178). Further he was asked: “So it doesn’t matter to you that other people might feel upset about you because of what you say because you think that its your duty to point out their shortcoming? Yes. And that is a reputation that you would be content with? Yes. I’m proud of it because if I didn’t do it, I would be a hypocrite, that’s my main problem that’s what I am trying to avoid. Tell the truth is a great asset.” The plaintiff is content with a reputation that he has a duty to point out the shortcomings of others even if it is upsetting or offensive. The plaintiff uses strong and challenging language in his letters to the various staff at NTOEC. The descriptions given by the Defendant in her letters and memos are substantially true in terms of describing that language and its impacts, on any fair reading of the material. Although use of the word “harass” may not be correct from the dictionary meaning, other choices such as annoy, upset or attack might have all been appropriate choices to convey the same or similar message.
95. Whatever view is taken of this material, context has a significant bearing on the final result. The fact the Defendant has responsibility for staff and would be expected to take some action on the letters and material from the plaintiff, underlines the importance of the application of qualified privilege in these circumstances.
96. If I am wrong and it is found the plaintiff has been defamed, given the evidence the plaintiff gave in relation to his reputation that he accepts he points out the faults of others even if it offends, I do not see that his reputation has been damaged. He told the court he doesn’t consider yelling at people or being aggressive (verbally) for a “just cause” to be wrong. (T 146-7). If people are fearful from the aggression, he says “that’s their problem, not mine”…”because I don’t intend to harm to anybody, not physical harm.” In those circumstances, given the plaintiff is content to be known by this reputation, indeed to take some pride in it, I would not make an award for damages. I dismiss the claim for defamation.
97. In relation to both the misfeasance in public office claim and the defamation claim, the plaintiff seeks aggravated and exemplary damages. Aggravated damages are compensatory in nature and exemplary damages go beyond the question of compensation and are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as to proof of the detestation of the jury to the action itself.” :(Lackersteen v NTA, (1988) 92 FLR 6, Asche CJ citing Wilkes v Wood (1763) 98 R 489 at 498-99 per Pratt LCJ.). Generally an award for such damages is made to show the Defendant and others that “tort does not pay”: Rookes v Barnard [1964] AC 1129, per Lord Devlin at 1227. I do not see anything in the conduct of the Defendant requiring the necessity for an award of this kind.
98. As noted above, the plaintiff sought leave from the Honourable Supreme Court to appeal a ruling I made during the course of the hearing. After allowing amendment of the grounds for leave, His Honour Justice Angel made certain directions that the defendant be cross-examined on certain material in this Court. That further hearing did not occur until 1 December 2008. I note the plaintiff sought further leave to extend time to appeal the ruling of His Honour to the Court of Appeal on 3 November 2008 and the Court of Appeal dismissed that application on the same day. Both parties submitted the result required the further cross-examination of the Defendant as His Honour’s order para 3 read “The matter is remitted back to the Local Court for further hearing, directing the Magistrate to recall the Defendant for further cross-examination by Mr Step as to her reasons for refusing his enrolment“. I proceeded on the basis the intention was that the plaintiff be permitted to cross examine the Defendant in accordance with His Honour’s Order interpreted in the light of the transcript of His Honour’s reasons of 20 May 2008.
99. I will make orders dismissing the claims and will hear any application for costs.
Dated this 23rd day of April 2009.
_________________________
Jenny Blokland
CHIEF MAGISTRATE
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