FEDERAL COURT OF AUSTRALIA

 

Dunstan v Human Rights and Equal Opportunity Commission (No 2)

[2005] FCA 1885

DEFAMATION – whether communications reporting on the views of co-workers about the applicant’s suitability for particular work were in the circumstances defamatory – whether the communications were subject to qualified privilege – whether malice on the part of the publisher established – claim dismissed

MISFEASANCE IN PUBLIC OFFICE – communications reporting on suitability of applicant to return to particular work location – whether communications actuated by malice or undertaken recklessly indifferent to existence of power to make them – claim dismissed

DISCRIMINATION – applicant complained of sex harassment by co-worker – both applicant and co-worker relocated to different work locations – other workers in applicant’s work area reluctant to him returning there – claim of sex discrimination against officers of employer and employer for treating applicant as male differently from treatment which would have been given to female in same or similar circumstances – claim dismissed

DISCRIMINATION – inquiry into claim of sex discrimination not continued as complaint lacking in substance – elapse of three years and nine months between complaint and decision – decision of officer to refer complaint for public inquiry – whether applicant denied procedural fairness – whether delay constitutes denial of procedural fairness – whether decision of officer (not Sex Discrimination Commissioner) to refer complaint for public inquiry effective

Administrative Decisions (Judicial Review) Act 1977

Sex Discrimination Act 1984 (Cth)

Racial Discrimination Act 1976 (Cth)

Human Rights and Equal Opportunity Act 1986 (Cth)

Freedom of Information Act 1982 (Cth)

Public Service Act 1999 (Cth)

Defamation Act 1901 (NSW)

Defamation (Amendment) Act 1909 (NSW)

Seat of Government Acceptance Act 1909 (Cth)

New South Wales Acts Application Act 1984 (ACT).

Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 considered

Kioa v West (1985) 159 CLR 550 (Kioa)

Re Pergamon Press Ltd [1971] Ch 388 considered

F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 considered

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 considered

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered

Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 considered

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 considered

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 considered

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 considered

Sanders v Snell (1998) 196 CLR 329 at 346-350 considered

Northern Territory v Mengel (1995) 185 CLR 307 considered

Pemberton v Attorney-General [1978] Tas SR 1 considered

Tampion v Anderson [1973] VR 715 considered

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 considered

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 considered

Guise v Kouvelis (1947) 74 CLR 102 considered

Calwell v Ipec Australia Ltd (1975) 135 CLR 321 considered

Howe & McColough v Lees (1910) 11 CLR 361 considered

Musgrave v Commonwealth (1937) 57 CLR 514 considered

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 considered

Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 considered

Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 considered

Riddick v Thames Board Mills Ltd [1977] QB 881 considered

COLIN GEORGE DUNSTAN v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, HENRY PRICE, DONALD BARTLEY, JOHN GROWDER, GEOFFREY SEYMOUR and COMMONWEALTH OF AUSTRALIA

 

 

ACD 30 of 1997

 

 

 

MANSFIELD J

21 DECEMBER 2005

ADELAIDE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 30 OF 1997

 

BETWEEN:	COLIN GEORGE DUNSTAN APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT   HENRY PRICE SECOND RESPONDENT   DONALD BARTLEY THIRD RESPONDENT   JOHN GROWDER FOURTH RESPONDENT   GEOFFREY SEYMOUR FIFTH RESPONDENT   COMMONWEALTH OF AUSTRALIA SIXTH RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	21 DECEMBER 2005
WHERE MADE:	ADELAIDE (HEARD IN CANBERRA)

 

THE COURT ORDERS THAT:

 

1.         The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 30 OF 1997

 

BETWEEN:	COLIN GEORGE DUNSTAN APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT   HENRY PRICE SECOND RESPONDENT   DONALD BARTLEY THIRD RESPONDENT   JOHN GROWDER FOURTH RESPONDENT   GEOFFREY SEYMOUR FIFTH RESPONDENT   COMMONWEALTH OF AUSTRALIA SIXTH RESPONDENT

 

JUDGE:	MANSFIELD J
DATE:	21 DECEMBER 2005
PLACE:	ADELAIDE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

THE CLAIMS

1                     This application has taken a considerable time to come to hearing.  The reasons for the delay are referred to in Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 at [11]-[23].  It is not necessary to repeat those matters.

2                     The application involves three claims.  All claims arise out of events which happened in relation to the applicant’s employment as a member of the Commonwealth Public Service (the service).  In particular, events which occurred between about 1987 and 1997 have attracted the current proceedings.  Part of that period concerns the background to the applicant’s claims, and part of it concerns the conduct which gives rise to the claims themselves.  Each of the third, fourth and fifth respondents were at all material times also employed by the service, and were the applicant’s superior officers.  The second respondent was at all material times an employee and/or agent of EASACT Australia Pty Ltd (EASACT), an organisation engaged by the sixth respondent to provide staff services to the sixth respondent as part of a program for officers working in the Australian Taxation Office (‘the ATO’).  The program was identified as an ‘Employee Assistance Program’. 

3                     The issues between the parties are defined by the pleadings.  The relevant statement of claim is the amended statement of claim filed on 13 November 1998 (excluding pars 7, 8 and 9, which were not relied upon by the applicant and which were therefore struck out).  It is refined by the particulars of the ‘misfeasance in public office claim’ provided by the applicant by letter of 10 November 1998, and further by particulars of the damages claimed in the defamation claim provided by document entitled ‘Further Particulars’ filed on 21 July 2004.  The third to sixth respondents filed a defence on 27 January 1999 and the second respondent on 26 May 1999.

4                     The first claim is against the first respondent under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act):

(a)                to review its conduct ‘whereby steps required by the Sex Discrimination Act 1984 have not been taken’, and to direct it to conduct an inquiry into a complaint of sexual discrimination made by the applicant;

(b)                to review and quash its decision not to inquire into certain acts, as a period of 12 months had elapsed since the alleged acts were done; and

(c)                to review and quash its decision not to continue to inquire into certain complaints, as it regarded them as lacking in substance.

5                     I will call this claim ‘the ADJR claim’.

6                     It is helpful to explain the basis for the ADJR claim in a little detail at this point.  On 17 September 1993 the applicant made a complaint to the first respondent of discrimination in employment by officers of the ATO, namely the third and fifth respondent, and by the sixth respondent, on the grounds of his sex and race and of sexual harassment (the sex discrimination complaint).  It followed a complaint of sex harassment made by the applicant to the ATO made on 6 September 1993 concerning the conduct of a female employee X (‘the sex harassment complaint’).  There is a long history preceding the sex discrimination complaint to which it will be necessary to refer.

7                     Briefly, the applicant complained to the ATO of sex harassment by X in the workplace over many years, but in particular in the ATO workplace from 1990.  The applicant and X, at least for a time, had a complex relationship.  On 30 August 1992, it came to an end by mutual agreement, including that X would seek a transfer in her employment from the area where she and the applicant both worked, but ultimately she did not do so.  The applicant then sought the assistance of the ATO management.

8                     The applicant’s sex discrimination complaint to the first respondent was that the ATO through certain officers discriminated against him in the way they addressed the then circumstances, by labelling the contact between the applicant and X as ‘a relationship’, and then by failing to take any real steps to address his concerns.  He asserted in the complaint to the first respondent that the ATO handled the matter in that way because he was male, and that if the reverse situation were the subject of a complaint (that is, a complaint of a male allegedly sexually harassing a female in the workplace) the way in which the complaint to the ATO would have been handled would have been quite different.  The applicant also referred to the fact that, by a decision made on 10 December 1992, both he and X were transferred by mid February 1993 from the area they were working.  As he was the ‘victim’, as he claimed, the ATO should not have penalised him by removing him from his normal workplace.

9                     The sex discrimination complaint to the first respondent did not explain the basis for any alleged racial discrimination against him, but that emerged in the course of the first respondent’s investigation of the complaint.

10                  The particular decision of the first respondent which gives rise to the ADJR claim is recorded in a letter of 2 April 1997 to the applicant.  The first respondent notified the applicant of its decision, made by Ms Zita Antonios as delegate of the Sex Discrimination Commissioner, that in respect of the sex discrimination complaint he had made against the ATO and others under the Sex Discrimination Act 1984 (Cth) (the SD Act) and in her capacity as the Race Discrimination Commissioner under the Racial Discrimination Act 1976 (Cth) (the RD Act), the first respondent had decided not to continue to inquire into his allegations.

11                  The letter of 2 April 1997 gave reasons for the decision.  It also informed the applicant of his right within 21 days of receipt of notification of that decision to have the decision of the Sex Discrimination Commissioner through the delegate referred to the President of the first respondent for review.  There followed some correspondence between the applicant and the first respondent.  The applicant did not seek review of the decision notified by letter of 2 April 1997 by the President of the first respondent within the 21 day period which the Human Rights and Equal Opportunity Act 1986 (Cth) (the HREOC Act) then allowed for.

12                  The first respondent has indicated that it will abide any order of the Court in respect of the ADJR claim.  The sixth respondent was added as a party on its application on 19 August 1997 to act as the contradictor to the applicant’s claims against the first respondent.

13                  The second claim is against the second to fifth respondents for damages at common law for ‘defamatory publications and gestures made and distributed, with express malice’ by each of them (the defamation claim).

14                  The allegedly defamatory communications comprise five primary communications.  The first three are parts of letters from the second respondent dated 17 February 1995, 11 May 1995 and 5 December 1995 published to the third respondent, and then republished by the third respondent to the sixth respondent on 23 January 1996.  The fourth one is a part of a letter from the third respondent dated 4 January 1996 to the applicant sent to the second respondent of 24 January 1996 by the third respondent, and later sent to the sixth respondent on 4 July 1996 (together with the first three letters), and also published by the fifth respondent to the first respondent on 18 January 1996.  The fifth one is a minute from the fourth respondent dated 24 April 1996 sent to the sixth respondent and also published then to the industrial officer of the Commonwealth Public Sector Union (the CPSU).

15                  The third claim is against the third, fourth and fifth respondents.  It is for damages at common law for misfeasance in public office in that between September 1993 and July 1997 the third, fourth and fifth respondents in discharge of their public duties published false and/or misleading information to the first, second and sixth respondents concerning the applicant and his employment and concerning the sex discrimination complaint:  Nine communications on the part of the third respondent are identified, one on behalf of the fourth respondent and two on the part of the fifth respondent (the misfeasance in public office claim).

BACKGROUND

16                  Much of the background information is, as one would expect, uncontested.

17                  It is convenient to record the management structure within the IT Services Group of the ATO at material times, including the roles of the third respondent, the fourth respondent, and the fifth respondent.

18                  The fifth respondent worked with computers from 1965.  He worked with the ATO from February 1985 as First Assistant Commissioner and head of the IT Services Group from then to 1 October 1997 when he retired from the service.  He had 1200 or so staff under his control throughout Australia, including 600 in the Australian Capital Territory.  The persons under his supervision included the applicant, following the applicant’s transfer to the ATO in 1987. 

19                  From 1985 to 1992-1993 the structure in the ATO was ‘line management’.  The applicant was accountable to the third respondent then Computer Systems Officer Grade 5 (the equivalent of Senior Information Technology Officer Grade A) and the Director, Database Services, managing the Data Services Section (sometimes called in evidence the Data Administration Section and which I shall call the Data Services Section) where both the applicant (from 1990) and X worked.  The third respondent reported in turn to the fourth respondent, who worked at the SDS level.  The fourth respondent in turn reported to the fifth respondent.  The fifth respondent reported to the Commissioner of Taxation.  The administrative system was changed to ‘portfolio management’ in 1992/1993 so that the third respondent (and others at that level) reported directly to the fifth respondent.

20                  The fourth respondent joined the service in 1968.  He worked in the ATO between 1970 and 1972, then from 1986 to 1997 as Assistant Commissioner in the IT Services Group of the ATO.  In that position he performed the role of senior manager in the IT Services Group.  His immediate supervisor was the fifth respondent.  On occasions in 1993 and 1994 the fourth respondent acted in the office of the fifth respondent when the fifth respondent was away.  From 1997 until his retirement on 13 November 2002, the fourth respondent held the position as First Assistant Commissioner in the IT Services Group, later known as ATO Technology.  During that time he had overall responsibility for the management and operations of that division of the ATO. 

21                  The fourth respondent’s direct involvement with the applicant of any significance was only from 1994.  He was the supervisor of the third respondent.

22                  The third respondent joined the ATO in August 1986 as Director of Data Administration to set up the Data Services Section of the IT Services Group.  In 1990, he became the Director of Database Services and from 1993 the Director (and later the Senior Director), Applications Support.  In 1996 he became the National Business Activity Manager, Applications Support.  Those roles all gave the third respondent responsibility for database administration and database design functions within the IT Services Group of the ATO.  In late 1996 the third respondent was transferred to an advisory role as IT Technical Expert until February 1998, when he transferred in the service to the Australian Bureau of Statistics.

23                  In his various roles, the third respondent was the applicant’s direct supervisor between 1987 and February 1993, and again from June 1994 to December 1995.

24                  The applicant was employed in the service on about 25 October 1975.  He worked successfully in the Department of Defence, the Australian Bureau of Statistics, the Department of the Capital Territory, the Department of Housing and Construction (for two separate periods) and the Patent, Trade Marks and Design Office until early 1987.  His work was in the information technology area.  His career moves apparently reflect periodic promotions with the service.

25                  In February 1987 the applicant commenced work at the ATO.  Until February 1993 the applicant was employed as Assistant Director, Database Administration subsection (the DBA subsection).  He remained in that position until mid-February 1993.  The DBA subsection was part of the Data Services Section of the IT Services Group of the ATO.

26                  The applicant worked directly in line under the third respondent when the applicant first transferred to the ATO in the DBA subsection.  By 1991-1992, the applicant was a team leader or manager in that section, in charge of some 12 to 16 people.  He occasionally acted in the office of the third respondent when the third respondent was on leave.  To that time, the third respondent found him to be a reasonably good worker, with good analytical skills, although he sometimes apparently focused on technical issues at the expense of management issues.  The third respondent rotated his four team leaders in the Data Administration subsection between technical and management roles from 1990.  He noticed in early 1991 that staff morale in the DBA subsection would drop when the applicant was in the management role, apparently because of his style of management.

27                  In April 1990 X joined the ATO and commenced working in the same area as the applicant and under his supervision.  It is now clear from the applicant’s evidence, although the third respondent did not learn of it until December 1992, that the applicant and X were having a form of relationship at and following that time.  The third respondent only learnt of the relationship when it had broken down.  The applicant and his wife told the third respondent of the relationship and of the agreement that it had come to an end.  The agreement was made on 30 August 1992.  The third respondent was told that the applicant and X had agreed not to see each other again, and that they could not work together in the same workplace, so that X had agreed to seek a transfer within the service and outside the ATO.  He was also then told that the applicant had been attending an EASACT counsellor.

28                  At about the same time, X gave the third respondent a letter dated 31 August 1992 requesting her transfer, and seeking the third respondent’s assistance in arranging a transfer, within the service.  It confirmed what the applicant had told the third respondent about that time.  The applicant also went on three weeks’ leave at the time, also (as the third respondent understood, and as was the case) pursuant to the agreement of 30 August 1992.  He learnt also that X was undergoing counselling. 

29                  After discussion between the fourth respondent and the fifth respondent and the third respondent, X was temporarily ‘outposted’ to a different part of the ATO though still performing DBA subsection work, while the third respondent tried to arrange her transfer to another department of the service.  Whilst still ‘outposted’, on 18 November 1992 X by memorandum to the third respondent withdrew her request for a transfer and asked to be relocated to the DBA subsection.  In that memo she said that she was confident that she would no longer have difficulty working in the same area as the applicant.  The applicant came to learn of that request.  By letter of 20 November 1992 to the fifth respondent, he strongly opposed X returning to work in the DBA subsection.  He emphasised that he himself was reluctant to move from the DBA subsection.

30                  The third respondent discussed those circumstances with the fifth respondent.  They made certain inquiries.  On 10 December 1992, the fifth respondent, in consultation with the third respondent, decided that both the applicant and X should be removed from the DBA subsection to separate work areas within the ATO.  In early February 1993, X was relocated to a new work area and the applicant was also in mid-February 1993 relocated to the Client Consultancy Services (CCS) Section of the IT Services Group until December 1993.  It was during that period, on 17 September 1993, that the applicant made the sex discrimination complaint to the first respondent.  During that period, also, the applicant consistently sought that the decision to transfer him from the DBA subsection be reversed, and that he be relocated to the DBA subsection.  He was unsuccessful in those attempts.

31                  In December 1993, as the project the applicant was working on in the CCS Section was completing, the applicant was transferred to the Information and Research Services (IRIS) Project Team within the ATO. 

32                  At the time of the restructure of the IT Services Group in early 1994, the applicant on 8 March 1994 requested that he be moved back to the CCS Section in the CBS Tower.  He indicated that he accepted that it was not appropriate at that time to seek re-transfer to the DBA subsection until resolution of a grievance complaint and his complaint to the first respondent.  He referred in particular to his transfer from the DBA subsection and to the ‘unreasonable conditions declared’ for his return to that position.  The applicant followed up that request on 22 March 1994.  The third respondent gave consideration to the applicant’s request.  Some staff in the Data Services Section had previously worked with the applicant in the DBA subsection and were reluctant to have him return there.  The third respondent was then aware of communications between the applicant and the fifth respondent regarding the applicant’s reluctance to attend a meeting with the fifth respondent as requested, and indeed of his reluctance to have further dealings with the fifth respondent.

33                  It was decided that the applicant should return to the CCS Section.  He did so on 7 June 1994 (formally documented on 20 June 1994).  As part of the restructure, the third respondent was in charge of the applications for the Support and Consultancy Section, which included most of the previous CCS Section, the Software Engineering and Architecture Section, and the Data Services Section (including the DBA subsection).  Up to that time the DBA subsection had been located in another building. 

34                  During 1994 the third respondent and the applicant discussed on several occasions how the applicant’s outstanding workplace issues in relation to the DBA subsection might be resolved.  The third respondent said his primary concern was to resolve workplace issues and tensions, so the applicant could be a productive staff member who could work well with other staff.  An incident of that outcome, if achieved, might be the applicant’s return to work to the DBA subsection.  The applicant’s focus was much more specific.  He simply wanted to return to work to the DBA subsection as soon as possible.

35                  In October 1994 the third respondent approached EASACT to see if it could assist in his objective, and the applicant agreed to him doing so.  The second respondent was assigned to the task.  The applicant says that he suggested that course of action to the third respondent, as he saw it as a possible way to clear the air with the DBA subsection staff who were still concerned about his return to work there.  The third respondent did not give evidence to dispute that suggestion, namely that the involvement of EASACT first came from the applicant, though he pointed out that EASACT had made a presentation to ATO officers in October 1994 as to the services it had been engaged to make available to ATO staff.  The suggestion that the applicant proposed that contact in the first place is consistent with his desire to return to work in the DBA subsection and to promote exploration of how he might overcome at least one of what the third respondent and the fifth respondent regarded as obstacles to him doing so.  The third respondent said his primary concern in all this remained the general concern of resolving workplace issues and tensions, so that the applicant could be a productive staff member who could work well with other staff, and that the applicant returning to the DBA subsection would be simply an incident of that outcome if achieved.

36                  The process undertaken by the second respondent was to consider whether mediation of the issues between the applicant and some staff in the Data Services Section (including the DBA subsection) could usefully be undertaken.  The process was prolonged.  It was not completed until December 1995, although the nature of the issue addressed by the second defendant evolved over time.  It was not successful as the second respondent reported then that there would be no point in such a mediation process.

37                  In the meantime, the issues arising between the applicant and some staff in the Data Services Section were potentially forced to a head.  The locations of various sections changed in mid 1995 when the DBA subsection and the CCS Section, and some other subsections, were to move to the same floor of the same building, the fourth floor of CBS Tower.  The applicant would therefore have been working on the same floor as those staff, albeit in a different subsection.  The immediate problem was averted as the applicant then went on long service leave from mid-1995.  He did not return to work until 2 January 1996.  Shortly before his return to work, he was directed to work in the IT Services Costing Project on the 7^th floor of the CBS Tower.  He did so only briefly.  He then commenced an extended period of sick leave.

38                  The applicant next returned to work on 16 December 1996.  He reported directly to the fourth respondent.  He remained in those duties, albeit reluctantly, performed again away from the DBA subsection, until 4 June 1997.  On that date the applicant was suspended from duty.  He did not return to work thereafter.

39                  His employment in the service formally ceased on 20 May 2001.  That followed his convictions on three counts for attempting to inflict grievous bodily harm on another person by sending explosive devices through the mail in December 1998 to many of those persons with whom he had dealt concerning his transfer from the DBA Section in February 1993, and his sex discrimination complaint.  The applicant said in evidence his actions were, he now accepted, stupid and irrational.

40                  The applicant in his opening said that his initial overall objective by the claims in this action was to get his job back in the DBA subsection.  He accepted that in the light of his convictions he would no longer achieve that objective.  Events since the action was commenced, leading to the cessation of his employment in the service, have made that prospect beyond reach in these proceedings.

the witnesses

41                  The evidence was very extensive.  The applicant understandably wished to put forward every piece of information which he considered might be relevant to his case.  His dealings with the respondents indicate a person who is very cautious to ensure that no observation or statement of any of the respondents which might be either inaccurate or incomplete should go unremarked, or uncorrected.  They also indicate a person who is fastidious in his attention to detail.  A lot of the material in evidence reflects that approach by the applicant, and a similar approach by the respondents.  Each party was obviously anxious to leave no assertion or comment unanswered, lest silence be construed as acquiescence or acceptance.

42                  It is easy enough to understand how things came to that stage, although understanding should not be seen as endorsement of that approach.

43                  The applicant, whatever his underlying personality, had on his own account a very difficult relationship with X, and one which he unsuccessfully strove to extract himself from.  It influenced his health adversely, even to the point where he attempted suicide.  He sought the assistance of the ATO.  He did not consider he got the level of assistance he was entitled to, although I think anything much short of a resolution of his difficulties on his terms would have been regarded by the applicant as a sufficient and adequate response by the ATO officers.  When the agreement reached on 30 August 1992 apparently was not honoured by X, by her desire to return to the DBA subsection in late 1992, the applicant and X were both moved from the DBA subsection and upon terms which (the applicant understood) imposed the consent of X as a condition of his return to that work area.  The applicant felt he was being punished for being the victim of sex harassment by X.  Moreover, he felt that X had control over his future work placement.  Those experiences made him sensitive to and suspicious of the roles played by the respondents in his employment locations after 1992.

44                  It was the applicant’s underlying personality, fuelled by those experiences, which made the applicant the pedantic and assertive individual which others perceived.  It was in response to that assessment of the applicant that the respondents themselves adopted thorough note taking procedures and were very cautious and careful in their communications with him.  I point out that, in recognising those circumstances, I am not making any finding in fact as to the nature of the relationship or dealings between the applicant and X generally.  That was not directly an issue in the proceedings, and X did not give evidence. I have addressed particular events as necessary for the resolution of the applicant’s claims.  However, that overall understanding of the applicant’s position explains why the communications between the parties, and the affidavit evidence of the applicant, is so fulsome and detailed.

45                  To his credit, at the hearing, the applicant adopted a more robust and realistic view of what matters the Court needed to address to determine his claims.  A number of objections to the proposed affidavits made by one or other of the respondents he acquiesced in, because he accepted that resolution of the particular factual issue was not integral to determination of his claims.  He limited his cross-examination to areas of direct relevance to his claims.  In several instances, he did not pursue cross-examination much if at all because a particular witness had previously been affected by his conduct towards that witness and he expressed regret to that witness for the distress he had caused.  He adopted that course with the awareness that, as was explained to him, the failure to challenge in cross-examination evidence given by a witness was likely to lead to that witness’ evidence being accepted.  The respondents, for their part, remained focused on matters directly relevant to the matters to be determined in the proceedings, both by the evidence adduced from witnesses they called and in cross-examination.

46                  The end result is that the recording of my findings can proceed largely in a narrative and chronological sequence.  I shall indicate where particular contradictory evidence requires particular consideration.  It also is both possible and appropriate to limit the findings to those matters which do directly relate to the issues arising in the proceedings, so that I have not traversed each and every piece of evidence received in the course of the hearing.

47                  Before setting out the detailed findings, I also record my views as to the reliability of the witnesses.

48                  Evidence was given by the applicant, each of the second to fifth respondents, by Betty Hand a member of the service working in the DBA subsection of the ATO from about 1991, and by Sally Petherbridge and Debra Tyler, each officers of the Australian Capital Territory Human Rights Office (the ACT HRO).  The ACT HRO acted as agent for the first respondent in receiving and investigating the applicant’s sex discrimination complaint to the first respondent between 17 September 1993 and 31 December 1996.  There was also, as I have indicated, extensive documentary material either exhibited to affidavits or tendered during the course of the hearing.

49                  I accept that the applicant was a witness of truth.  I have indicated above that his evidence emerged from the prism of his perceptions of his experiences at the hands of X, and of his perceptions of the approach to his problems adopted by the respondents, having sought to engage the ATO and then the first respondent in redressing the adverse consequences or effects of his dealings with X.  Consequently, there are parts of his evidence reflecting his views on particular matters which do not necessarily reflect what I find to be the facts.  Indeed, in his evidence from time to time the applicant acknowledged that an assertion of fact he had made was based upon inference from what he knew or understood, and from his particular perspective.  When examined in the light of the whole of the evidence, that inference in a number of instances is not one which I have drawn.  That is not so in every case of dispute between the applicant and one or more of the respondents, but I think his evidence reflects that by early 1993 the applicant was of a mind to draw from particular circumstances the more sinister inference available to him about the reasons for particular conduct of one or more of the respondents when a more benign explanation from the circumstances and the primary material was available.  My conclusion from the whole of the evidence is generally that the more benign explanation is the correct one.

50                  One theme of cross-examination of the applicant was to suggest that many of the actions he took, including the grievance complaint against the third respondent on 16 November 1994, are indications of the applicant being prepared to use all available procedures to bully his way to the outcome he wanted.  I find that the applicant acted on what he regarded as genuine and proper motives, that is to get himself returned to the DBA subsection whence he considered he had been unfairly removed.  It is clear, as the applicant himself acknowledged, that he did avail himself of all or many possible avenues to force the issue, as he did not accept that the process was proceeding as quickly as it should and, from his viewpoint, (however mistaken), he regarded that all those with whom he dealt were conspiring to frustrate the outcome to which he thought he was entitled.  Hence, his grievance complaint against the third respondent in November 1994.  Hence, also his various actions commenced against officers of the ATO referred to elsewhere in these reasons.  The applicant in evidence, no doubt in the light of his awareness of the views of Linda Millar, the Equal Employment Officer (‘EEO’) of the IT Services Group of the ATO and of the third respondent’s disagreement with them, acknowledged that the issue of his return to work in the DBA subsection from the third respondent’s point of view was not straightforward.  It is also worth noting that the applicant did not then, and still does not, accept that his strong and insistent desire to return to work in the DBA subsection and the steps he took to procure that end itself generated concern on the part of those in the workplace.  However it did so.

51                  It was in a sense a ‘Catch 22’.  The applicant had or developed the firm conviction that he had been wronged, and wrongfully punished, by his transfer from the DBA subsection.  He had a strong desire to return there to demonstrate vindication of his rights.  Others did not have that full appreciation of his point of view, and could see only the applicant taking what steps he thought were available to him of a very insistent nature to achieve a result.  I can understand why the taking of those steps in the circumstances, not simply the number of steps but the types of steps (legal actions, grievance complaints and the like) would generate reluctance to accept the applicant back into the workplace and would generate some concern that, if he returned to that workplace, those working there would become significant targets of such behaviour.  The more forcefully the applicant pursued what he regarded as a legitimate objective, so the potential for that forceful conduct to be understood as a basis for his co-workers’ reluctance to have him return there grew.

52                  Consequently, I do not find that the applicant was acting dishonestly or, from his viewpoint, improperly in taking the action he took up to mid 1996 to return to the DBA subsection.  I do not discount his honesty on that score.  However, as I have said, his perspective required an informed viewpoint which, one can readily understand, was not shared by those working in the Data Services Section or more specifically the DBA subsection.  One can also readily understand their perspective, with their awareness of the actions the applicant took from time to time to enforce his ‘rights’ as he saw them.  The resolution of the issues in these proceedings is not, therefore, influenced by any adverse assessment of the applicant’s honesty.  It is of course a different matter as to the weight to be given to his evidence where it is in conflict with other evidence on issues which need to be resolved.

53                  The second respondent gave his evidence in a straight forward way.  He was very careful to define his role.  It was not to mediate between the applicant and those in the Data Services Section (including the DBA subsection) who opposed his return to work there.  He advised by February 1995 that the prospects of successful mediation were negligible.  Nevertheless, he undertook then the process of endeavouring to give both the applicant and those in his former workplace a better insight into their respective concerns.  It is possible to be critical of the length of time that process took.  It does not, in my view, indicate any lack of genuineness on the part of the second respondent.  Nor does it indicate any ulterior or sinister purpose on the part of the second respondent, either alone or shared with the third respondent.  In my judgment, the second respondent’s evidence is reliable and I accept it.  I accept he was acting in a professional capacity only and that his evidence about what he did and why he did it is both truthful and accurate.

54                  I also found the third and fifth respondents to be straightforward witnesses.  They were the respondents against whom the applicant made the most serious allegations of dishonesty.  The particular allegations are addressed below.  In each of their cases, I find that they gave their evidence honestly, and endeavoured to be reliable in what they told the Court.  They were cautious in how they expressed their evidence.  My firm impression is that such caution reflected a desire not to be unfair to the applicant.  That approach was consistent with their dealings with the applicant throughout, that is they consistently sought to be objective and thorough in their dealings with him, notwithstanding that he presented to them a difficult administrative problem.  They each acknowledged that their focus was on securing a properly functioning workplace, as well as on treating the applicant and X fairly.  As they did not regard the resolution of the sex discrimination complaint as their function, or more accurately they did not regard the resolution of the underlying issue to the complaint that the applicant was the victim of sex harassment by X as their function, their evidence must be assessed in that light.  As I have observed, the applicant in effect started from the position that he had been sexually harassed by X, so that any move from the DBA subsection wrongly punished him.  Whether the approach of the third and fifth respondent suggests a finding of the impropriety alleged by the applicant against them is considered below.  In assessing the allegations against them, I have generally accepted their evidence as to why they acted in particular ways at particular times.

55                  In fact, the fifth respondent’s dealings with the applicant after 1995 were slight.  The management of the attempt to get the applicant to return to work in 1996 and 1997 was managed by the fourth respondent in consultation with him.  Those matters are considered later in these reasons. 

56                  The fifth respondent was the target of quite serious allegations by the applicant.  They include that he participated in the fabrication of the ATO response to the applicant’s complaint to the first respondent, in the concealment and fabrication and destruction of evidence in relation to the investigations of that complaint and in relation to the applicant’s claim for compensation, and in procuring X as a respondent to the applicant’s complaint to the first respondent so as to use her as a vehicle to provide false information in support of the ATO’s response to the complaint to the first respondent.  The fifth respondent denies all those allegations.  I accept his evidence that he did not engage in any of that conduct.  A careful analysis of the communications indicates that the fifth respondent was careful to maintain a proper trail of all his dealings with and concerning the applicant.  There are, in my view, no indications that the paper trail is either incomplete or contrived or fabricated in any respect.  The contrary is the case.  From the applicant’s perspective at the time, where he saw ‘all the world’ against him, it is understandable that he took the next step of concluding some form of collusion in those he perceived as acting against his interests.  However, I do not consider that his perception is a correct one.

57                  I have not overlooked the one category of document for which there is no clear trail to the hands of X.  It is the consulting notes of Ms Langford (EASACT) as counsellor for the applicant during 1992.  It appears that these notes somehow became available to X at some point in time.  There is no clear explanation of how that happened.  However, there is also no clear evidence which shows that those notes were provided to the fifth respondent at that relatively early stage, and no material suggesting that he had possession of them, much less that he passed them onto X.  His denial of having done so is in my view consistent with the care and propriety with which he conducted all his dealings with the applicant over the relevant period.  The notes were included in material received by the fifth respondent headed ‘Papers referenced in submissions to ACT Human Rights Office of 27 September 1996 by Mr C Dunstan’, apparently provided to the ACT HRO by the applicant during 1996.  They were also apparently given to the AAT in or about February 1996 by the applicant in relation to his compensation claim.  Whether either of those pathways is the means by which the information got to X is unclear. 

58                  The applicant also alleged in his statement that the fifth respondent used his position to cause disruptions to the applicant’s salary and child support payments to victimise him.  In cross-examination the applicant said that, although he was of the view that there had been manipulation of his salary and child support payments, he did not know that, and did not have direct evidence that the fifth respondent was involved in that suspected manipulation.  I accept that the fifth respondent did not do that.  There is no evidence to suggest he did.  He denies that he did.

59                  As with the fifth respondent, the applicant made similar serious allegations about the motives and conduct of the third respondent.  All were denied.  There was no cross-examination directly challenging his evidence-in-chief containing that denial.  My comments about the fifth respondent apply equally to the third respondent.  His evidence accords with contemporary documentation.  The documentation itself is coherent and, although expressed often in cautious terms, does not contain within it any indications that it is contrived or falsified.  It extends across communications with the applicant, with officers of the ATO, with the second respondent and with the ACT HRO in an apparently consistent and credible way.  Its terms reflect my impression of the oral evidence of the third respondent and the fifth respondent as conscientious truthful and thorough officers of the service, whose evidence is generally reliable.

60                  The fourth respondent was somewhat less directly involved with the applicant than the third and fifth respondents.  Like them, I found his evidence was given carefully and honestly.  He too was careful and thorough.  His evidence accorded with contemporary documentation, and I do not think that the contemporary documentation (although carefully expressed) was contrived either on the part of the applicant or on the part of any of the respondents.  In my judgment, his evidence generally was reliable and comprehensive of his role and that of others with whom he was dealing.  I accept it.

61                  The applicant in his final submissions did not challenge the honesty of the other witnesses called by the respondents:  Ms Hand, Ms Petherbridge or Ms Tyler.  He did make submissions about the accuracy or reliability of certain parts of their evidence.  I accept their evidence both as honest, and generally as reliable.  Like all the witnesses, there are a few areas which other evidence tends to put a little different light on particular events than that perceived by each of those witnesses.  I have discussed those events below.  Overall, I think each of those persons’ evidence is reliable and I accept it.

the findings

62                  As much of the unfolding history of events is recorded in writing, my findings can also be recorded more or less chronologically.  There is no significant dispute about the communications which were exchanged between the parties.  Nor is there any real issue as to the authenticity of other documents which became part of the evidence.  The complexity arises in determining the accuracy of factual assertions made in many of the communications or documents.  That is because the perspective of the author needs to be considered when understanding the significance of particular communications.  Where it is necessary to do so, I have therefore expanded upon the recording of relevant events.  For the reasons already given, I have not addressed or recorded each item of communication, but confined my findings to those which directly relate to the applicant’s particular claims.

63                  Apart from the background concerning the applicant’s ‘relationship’ with X, the starting point for present purposes is when that ‘relationship’ first came to the attention of one or other of the respondents.

64                  The third respondent was the applicant’s direct supervisor.  I accept his evidence that he only learnt of the applicant’s relationship with X, and that it had broken down, about the end of August 1992.  He learnt then that those events had affected the applicant’s health, that the applicant was consulting the counsellor Ms Langford of EASACT, and that X was also undergoing counselling.

65                  The fifth respondent was aware that the applicant was one of the senior IT officers working in his group.  He also first became aware of the relationship between the applicant and X on about 31 August 1992.  That was when X requested a transfer to another department in the service, due to potential ongoing difficulties in working with the applicant in the DBA subsection.  It was reported to him also that on 30 August 1992, the applicant and X had decided to end their relationship and to stop all contact between them, and that they therefore wanted to avoid the risk of conflict and misunderstanding.  There was no complaint made to him at that time regarding behaviour on the applicant’s part.  The fifth respondent spoke to the third respondent about the matter.  The third respondent confirmed to him the relationship between the applicant and X, and that it was affecting the team morale in the DBA subsection.  The fifth respondent therefore asked the third respondent to follow the matter up and to implement the request of X that she be moved.  She was given an interim ‘outposting’ within the ATO in the meantime.  The applicant continued working in the DBA subsection, after taking three weeks’ leave (as he had agreed to do as part of the arrangement between the applicant and X and their respective spouses on 30 August 1992). 

66                  Then, on 18 November 1992, X withdrew her request for a transfer and asked to return to the DBA subsection.  She said that she thought she would no longer have difficulty in working in the same area as the applicant.  The applicant apparently learned of her request very promptly.  On 20 November 1992 he wrote to the fifth respondent (copied to the third respondent) requesting that X be transferred to another area in the IT Services Group.  His letter referred to the history of the relationship and to the agreement reached on 30 August 1992.  He expressed both anger for what X had done to him in the past and fear for what she might to do him in the future.  He concluded:

‘I am VERY reluctant to leave my current position.  My work IS important to me.  I enjoy working with people in Database Services.  I am very proud of what we have achieved.

[X] has not spoken to me since August this year.  I cannot understand the basis of her claim that she believes we can now work together.  The problem which has emotionally crippled us for over six years refuses to go away.

After six years of difficulties between [X] and myself, I am sceptical that any “reconciliation” could be successful.  I would appreciate your assistance and support in transferring [X] to another area in IT Services Group.’

It is important to note that the memorandum did not, in my view, represent a formal grievance complaint about sexual harassment by X.  It identified a serious concern of the applicant, and the way he thought the concern should be addressed.

67                  The fifth respondent and the third respondent then gave careful consideration to the circumstances, including seeking advice from two persons who were separately providing counselling to the applicant and to X.  They met with the applicant and his counsellor Ms Langford on 24 November 1992.  At that time Ms Langford advised them that the applicant was severely depressed, indeed suicidal, and that she believed for the applicant’s psychological well-being that it was advisable that he not work in the same vicinity as X.  She repeated that view in a meeting with the fifth respondent and the third respondent and with the counsellor to X on 9 December 1992.  Apparently, on the other hand, the counsellor to X, Lorraine Fox did not think X would have the same difficulty in returning to work in the same area as the applicant was working.

68                  The third respondent was aware that the work being performed by X when outposted was to continue to January 1993.  Hence, he knew that it was convenient within the temporary arrangement for her to remain there for that period.  Like the fifth respondent, he also was concerned that any action he might take should have regard to the health of each of the applicant and X, and in particular if they were working in the same workplace.  He was also concerned about morale in the workplace if both the applicant and X were to resume work there together.  He also met with Ms Millar, EEO of IT Services of the ATO, on 24 November 1992.  Ms Millar gave him certain advice.  In his discussions with both the applicant and X separately, they also each indicated that they were concerned at being moved from the DBA subsection as one might then later return leaving the other disadvantaged in their career. 

69                  The fifth respondent then decided, in consultation with the third respondent, on 10 December 1992 to move both the applicant and X out of the DBA subsection.  They accepted the advice that the applicant and X should not work together in the same area.  The fifth respondent said:

‘ … the only equitable way forward was to move [them both] out of the DBA subsection.  We felt it would be unfair to have selected one over another, as moving out of a team would have an impact on the individual’s career for a period of time.  In our view Mr Dunstan and [X] should be treated equally.’

70                  The third respondent says that his advice, and from the discussion he had with the fifth respondent, the decision, was motivated by concerns regarding the applicant’s health if he and X were working in the same area, and that the applicant and X should be treated equally, and to minimise any impact in the DBA subsection workplace.

71                  The fifth respondent told X of the decision in the presence of the third respondent on 11 December 1992.  The fifth respondent told X that the move was not permanent and could be reviewed after (say) six months, although on the basis that if one officer was to return to the DBA subsection, then the other could also return.

72                  On the same day the third respondent told the applicant of the decision.  As the fifth respondent had said to X, the third respondent told the applicant that in the future the applicant or X might be able to return to the DBA subsection, but that the support of the other non-returning party would be sought before doing that.  He also told the applicant that the decision was motivated by the desire to treat the applicant and X equally. 

73                  The applicant claims that the decision was ‘consequent upon’ the allegations in his letter of 20 November 1992 and motivated by the fifth respondent’s desire to prevent the applicant from laying a harassment claim against X.  The fifth respondent denies that.  He was not challenged in cross-examination.  His evidence as to the process of his decision-making was confirmed by the third respondent.  I accept their evidence.  The applicant did not submit in closing submissions that I should not do so.

74                  Both the third respondent and the fifth respondent say that in December 1992 they did not have the opportunity to resolve (or indeed the function of resolving) any sexual harassment complaint by the applicant against X.  They had to address the personal conflict in the workplace in the interests of both the applicant and X, and of others working in the area.  The third respondent also said that he did not regard the applicant’s minute of 20 November 1992 to the fifth respondent, whilst setting out his views regarding work placements, as a request to investigate any sexual harassment allegation against X.  He pointed out that there was a formal means of making such a complaint which the applicant had not pursued by that memo.

75                  Although the applicant’s letter of 20 November 1992 provided information in relation to X’s desire to return to the DBA subsection, I accept that the decision of the fifth respondent on 10 December 1992 that each of the applicant and X be moved from the DBA subsection was pursuant to a desire for each of the applicant and X to receive equal treatment.  The fact was that they assessed that both the applicant and X should not work in the same area.  The underlying reasons why that was so were not then of great moment to them.  No doubt the applicant was of the view that the reasons – at least as set out in his letter of 20 November 1992 why they should not work together – should have been important to the third respondent and the fifth respondent.  It is quite possible to understand the applicant’s point of view, as in his mind he was being penalised although he was not ‘the wrongdoer’ and the solution, namely that X only should move from the area, had been resolved upon by the private agreement between the applicant and X and their partners on 30 August 1992.  However, I accept that neither the fifth respondent nor the third respondent were focusing on the underlying reasons for the problem of the applicant and X no longer being able to work together.  Their concern was the health of the applicant and X and the problem their relationship then was producing to the morale of the DBA subsection working team.  They were simply reacting to a problem in what they regarded as the best interests of the workplace and in the interests of fairness between the applicant and X.  Whether their judgment about what was fair was correct is a separate question.

76                  I also accept, contrary to the applicant’s suspicion, that the fifth respondent did not give an undertaking to X not to permit the applicant to return to work in the DBA subsection without X’s consent, nor consequentially that he concealed that undertaking from the applicant.  His decision was that both the applicant and X should move from the DBA subsection.  He told X that the move need not be permanent, and could be reviewed after about six months, but that neither would be able to return to the DBA subsection without the other’s consent.  He then asked the third respondent to convey the same decision to the applicant.  I am satisfied that the third respondent did so.

77                  The position may have been muddied, in the applicant’s mind, by a later memorandum from Ms Millar.  By memorandum of 2 September 1993 to her senior executive in the division, Ms Miller reported of concern that X may have been subjected to discrimination and harassment in the workplace since early September 1992 to May 1993 and continuing.  Her memorandum is inaccurate, at least on the information before me.  It does not refer to, or recognise, the background to the agreement of 30 August 1992, or the agreement itself leading to X’s move from the DBA subsection (although still performing work of the DBA subsection) from 30 August 1992.  It refers to an agreement ‘orchestrated by’ the fifth respondent that both the applicant and X be transferred from the DBA subsection in December 1992, when there was in fact no agreement but a decision by the fifth respondent for that move in the circumstances set out above.  It refers to X being transferred on 8 February 1993 pursuant to that ‘agreement’ (in fact that decision) and the applicant being transferred only a week or so later.  It (wrongly) asserts that the third respondent then made a number of unsuccessful attempts to relocate the applicant back to the DBA subsection in the ensuing months.  Ms Millar’s memorandum also refers to harassment of X by the applicant between 14 April 1993 and 30 April 1993, leading to the fifth respondent reprimanding the applicant for making that contact, and the applicant indicating that he would not communicate further with X except ‘through the courts’.  He in fact then instituted proceedings for harassment against X in respect of the period August 1987 to August 1992.  It seems to me that Ms Millar’s memorandum might have been seen as one sided and judgmental.  However, not having heard all the evidence on that topic, I do not (and do not need to) formally determine its accuracy.

78                  I find that neither the fifth respondent and the third respondent were concerned to investigate the allegation of sexual harassment made by the applicant against X by his letter of 20 November 1992 during their decision-making process in December 1992.  They said that that was not their role.  They had a problem which they had to confront, namely two members of the same work team in personal conflict, and they had to address that problem quickly both in the interests of the applicant and X and in the interests of the workplace.  The applicant in evidence accepted that their decision could not have been delayed pending the final outcome of the sex harassment complaint.  His memorandum of 20 November 1992 did not request the fifth respondent or the third respondent to investigate that complaint, though it referred in detail to the complaint, so that they should be informed of it when deciding what to do about the immediate problem.

79                  In early February 1993, X was transferred from the DBA subsection of the ATO.  In mid-February 1993, as noted, the applicant also was transferred to CCS Section, although that move was only formally documented on 30 March 1993.  Thereafter the fifth respondent described the applicant as beginning a pattern of ‘issuing grievances against work colleagues’.  The third respondent then had no workplace involvement directly with the applicant from his transfer out of the DBA subsection in February 1993 until May 1994.  From February to December 1993 the applicant worked in the CCS Section of the IT Services Group of ATO, and then in the IRIS Project team.  However, during 1993, a group of Database Services Section staff arranged a meeting with the third respondent to express their concern about the applicant’s management style.  The third respondent followed that up by seeking details of those concerns, so that he could raise them with the applicant when he thought the applicant’s psychological state had improved.  He also took part in a meeting with the applicant and the fifth respondent on 6 September 1993.

80                  In April 1993 the fifth respondent learnt that the applicant had been in contact with X.  He told him to stop.  Nevertheless, the applicant continued further correspondence with X on 26 April 1993.  A copy of that letter came to the fifth respondent’s attention.  He decided to discuss the situation with the applicant’s treating psychiatrist, Dr Tym, and with Ms Langford, his counsellor from EASACT.  He approached the applicant for permission to do so.  The applicant said in evidence that he understood that the fifth respondent was very concerned to get information regarding the applicant’s mental state, and that it was desirable that the fifth respondent should be able to do so.  There is, however, a dispute between the applicant and the fifth respondent as to whether the fifth respondent put the threat of suspension of duty to the applicant as an inducement to give his consent to the fifth respondent contacting Dr Tym.  Although I suspect the fifth respondent may have indicated that if he did not get information from the applicant’s treating counsellor and psychiatrist, he would consider sending the applicant to the Commonwealth Medical Officer, I do not accept the fifth respondent beyond that made the threat which the applicant perceived.  The subtleties of the conversation are not themselves important to resolution of the present issues.  The applicant gave the fifth respondent permission to speak to Dr Tym, and he did so, but the information then obtained did not apparently result in the fifth respondent adopting any different course of action.  The fifth respondent continued to speak to the applicant from time to time, often at the applicant’s instigation, when asking that he be transferred back to the DBA subsection.

81                  On 9 May 1993 the applicant received advice from a solicitor regarding certain aspects of his then past relationship with X.  A copy was provided to the fifth respondent.  The fifth respondent also received an unsigned memorandum from the applicant setting out at some length his version of his lengthy experiences with X and her harassing contact towards him.

82                  Then on 10 May 1993, X lodged with the ATO a grievance complaint against the applicant of workplace harassment in respect of his contact with her during April 1993. 

83                  On 14 May 1993 the applicant wrote to the fifth respondent requesting an immediate retransfer back to the DBA subsection.  He reported of continuing to feel ‘powerless and defenceless’ and that X was able to manipulate others into putting him into that position.  He suggested his retransfer was a step along his road to acceptance of the past and to show his life was not still being manipulated by X.  The fifth respondent did not think that the retransfer of the applicant to the DBA subsection (and if she also wished, the transfer of X back to the DBA subsection) would be wise.  Although the memorandum from the applicant requested the fifth respondent to take other steps to alleviate his position in relation to X, the fifth respondent did not do so as he considered that it was inappropriate.  In his evidence-in-chief, the applicant acknowledged that it was not appropriate for the fifth respondent to get involved in the applicant’s pursuit of his direct redress against X.  Indeed, in around May 1993, the fifth respondent ceased to have any involvement with the applicant in relation to his relationship with X.  He nevertheless dealt with the applicant generally thereafter as part of his normal duties.

84                  On 7 August 1993, the applicant wrote to ATO Personnel, copied to the third respondent and the fifth respondent, to discuss the options available to the applicant to review the decision of the fifth respondent of 10 December 1992 to transfer him from the DBA subsection on the ground that the decision may have been technically flawed.  His memorandum said of the decision (unlike his present allegations):

‘I believe that all persons involved in reaching the decision I seek to have reviewed have acted in the utmost good faith and have attempted to deal compassionately with what is a difficult situation.’

The suggested technical error was the emphasis placed upon the applicant being treated apparently equally with X, when in fact the circumstances leading to the decision had arisen from X sexually harassing the applicant, so that he had the right to stay in his job free of harassment.  He said:

‘My reasons for feeling that the decision to transfer me may have been flawed include the following:

1.             My minute to FAC(IT Services) of 20 November 1992 mentioned above set out conduct on the part of [X] which I believe indicates that she had been subjecting me to harassment of both a sexual and non-sexual nature for a number of years.  (See paragraphs 5 and 6).

2.             An ATO-produced pamphlet “Eliminating Sexual Harassment” states amongst other things:

·        “Being sexually harassed is not your fault”, and

·        “It is your right to stay in your job free of harassment.  You don’t need to transfer out or resign.”

Prior to being informed of the decision to transfer me, I was not questioned on the statements in my minute on [X’s] harassment of me.  If my statements were accepted, I believe the decision to transfer me was arrived at in error.  If my statements were ignored or rejected, I believe I should have been given the opportunity to establish their veracity prior to a decision having been made.’

The memorandum discussed then whether the applicant should take separate action to ensure that the assertion of harassment by X was established.  He indicated that he had commenced civil proceedings in the ACT court for damages from X for harassment for that purpose.  He offered to instigate appropriate disciplinary action against X if it were necessary to do so to establish the veracity of his claim of harassment.

85                  The applicant’s memorandum of 7 August 1993 was shortly followed by a formal request to return to work in the DBA subsection.  The third respondent discussed that request with the fifth respondent.  They agreed that the applicant had to be apprised of the concerns of the Data Services Section staff about the applicant doing so.  The applicant pointed out, and the third respondent acknowledged, that the applicant had not supervised all persons in the Data Services Section (a larger group than those working in the DBA subsection).  Nevertheless, the third respondent maintained that the views of the larger group were relevant because the applicant, as a team leader in the team leader rotation system, might be moved to supervise many of them and they all worked in any event in the same general area.  That area was the seventh floor of Custom Credit House, where there were work areas for Administration Staff, Information Resources Management staff, Database Design staff, and the DBA subsection staff (including the applicant) all in the one open floor plan office and adjacent to each other, so that each other (and all subsections of the Data Administration Section) were there.  It was quite common for staff in one subsection to deal routinely with staff from another subsection regarding particular matters in the course of their daily work.  They also shared kitchen facilities, including the area where they could go for tea and coffee as required, as well as sharing common facsimile and photocopying machines.

86                  I accept the applicant’s evidence that, when the third respondent spoke to him on 6 September 1993 regarding his request that he return to work in the DBA subsection, the third respondent told him in some detail of the concerns which the staff in the Data Services Section had earlier expressed.  Those concerns, as explained to the applicant, were that he may be vindictive towards certain people, that he did not share his knowledge, and that he spent different amounts of time with different staff.  I express no view as to whether those concerns were or were not justified.  The applicant suggested in evidence that those staff objections were engineered by the third and fifth respondents, but his view (as he accepted in evidence) was largely based upon inference.  I do not find that the third respondent or the fifth respondent engineered those complaints.  I accept that they arose in the circumstances referred to above.  I also accept his evidence that, in some way, he was given the impression that it was the desire of the third respondent and the fifth respondent that X be treated equally with the applicant, so that her attitude to his (or their) return to the DBA subsection was of relevance to the issue.

87                  At about the same time, on 9 August 1993, X wrote to ATO Personnel regarding alleged further and more recent harassment by the applicant by the court proceedings against her.  She requested her grievance of 10 May 1993 be heard as soon as possible.  She referred to the civil proceedings commenced on 16 July 1993 and earlier proceedings for the recovery of a ring instituted on 20 May 1993 (the latter claim was dismissed when the ring was returned at a pre-hearing conference).  The grievance complaint was addressed by Assistant Commissioner Butterfield.  On 29 October 1993 he determined that there was no legitimate complaint of harassment against the applicant outstanding.  Mr Butterfield notified X by letter of 29 October 1993 that she had no legitimate complaint as there were ‘no current harassment issues related to the workplace’.  The evidence indicates the applicant did not receive a copy of that letter until 1996. 

88                  In chronological sequence, I note then the minute or memorandum of Ms Miller of 2 September 1993.  It is referred to above.  It reflects quite a different perspective to that of the fifth respondent and the third respondent.

89                  The matter did not rest there.

90                  On 6 September 1993 the applicant sent to Mr Butterfield of ATO Personnel, copied to the fifth respondent, an official complaint of sexual harassment against X, and which I have called  the sex harassment complaint.  It concerned her behaviour in relation to the applicant during 1992.  On 8 September 1993 the applicant by letter to Mr Butterfield indicated that he wished to have no further contact with the fifth respondent concerning the applicant’s dealings with X, nor with X herself, and that he intended to resolve any ongoing issues by legal proceedings.  It reflects the applicant’s then view of the fifth respondent’s approach to the issues which, on the whole of the evidence, may not have been justified.  The fifth respondent is of the firm view that nothing he did in relation to the applicant or to X was other than even-handed and balanced, and in their respective best interests.  On 29 October 1993, Mr Butterfield informed the applicant that he was of the view that there was no sexual harassment relating to the workplace.

91                  The letter of 6 September 1993 may have been prompted by a meeting of 6 September 1993.  There is a dispute, to some degree, between the third respondent and the fifth respondent on the one hand and the applicant on the other about whether the fifth respondent at that meeting on 6 September 1993 said that, as a result of a meeting in February 1993 (following the decision of the fifth respondent of 10 December 1992) it was agreed that the applicant could only return to the DBA subsection if both the applicant and X returned there.  The decision as conveyed to both the applicant and X was that, after a period of time, consideration could be given to one or other of them returning to work in the DBA subsection, and that if that were to occur it would be with the support or approval of the other of them.  The difference is really one of emphasis, and is capable of arising from different perceptions about what was said at the time.  The resolution of the difference will not affect the outcome of the present proceedings.  The focus of the fifth respondent and the third respondent, both in December 1992 and in June 1993 was on treating the applicant and X equally, without taking into account the applicant’s sexual harassment ‘complaint’ against X, together with taking into account the interests of others in the workplace. 

92                  The applicant made a further formal grievance complaint on 1 November 1993 of sexual harassment in the workplace.  The satisfaction of the complaint, from the applicant’s viewpoint involved (inter alia) his return to the DBA subsection and that X not work in the same location as himself.  That was duly investigated.  On 29 March 1994, the applicant was informed by Acting First Commissioner Mobbs that the complaint could not reasonably be sustained.  The investigator’s report noted that X had pursued a relationship with the applicant, and that the ‘relationship’ had ceased in August 1992.  It further noted that when the ATO had become aware that the former ‘relationship’ may have been causing problems in the workplace, action was taken ‘to protect both parties from any potential harassment’.  In cross-examination, the applicant accepted that (as recorded by the investigator) the third respondent had been unaware of any problems until after 30 August 1992, and then after the applicant had been moved from the DBA subsection certain staff had expressed to him that they did not want the applicant to return there.

93                  As occurred on at least one other occasion, the applicant then got ‘bogged down’ or caught between seeking internal review of that decision and seeking formal review of that decision in this instance by the Merit Protection Review Agency (the MPRA).  He was also involved at the time with the claim he made to Comcare, elsewhere referred to.  Ultimately, on 3 November 1994, he sought review of the decisions concerning his grievance complaints by the MPRA.  It was formally acknowledged on 22 November 1994.  Before dealing with that process, I revert to the findings concerning his employment positions.

94                  As noted in the background section of these reasons, the applicant remained in the CCS Section until 10 November 1993 when he was transferred to the IRIS Project, and in June 1994 he returned to the CCS Section. 

95                  Before taking up the further course of dealings concerning the applicant’s employment, I turn to the handling of the sex discrimination complaint to the first respondent of 17 September 1993 of alleged discrimination against the ATO.  Until 31 December 1996 it was handled by the ACT HRO.

96                  Ms Petherbridge was the Director of the ACT HRO between July 1992 and June 1996.  Its functions included operating as a regional office of the first respondent.  In that capacity, it received the applicant’s complaint against the ATO dated 17 September 1993 together with other material.

97                  Ms Petherbridge was only briefly cross-examined by the applicant.  He did not directly challenge any of her evidence-in-chief.  I accept it.  He indicated also to her that he regretted that he had caused her great concern in the past.  That may have influenced the extent to which he cross-examined her.  However, as pointed out to him on a number of occasions during the hearing, his approach results in it being unlikely that the court would reject her direct evidence on matters which have not been challenged in cross-examination.  As I have said, in my view Ms Petherbridge was a straight forward and honest and reliable witness.

98                  Before receiving the sex discrimination complaint of 17 September 1993, Ms Petherbridge had spoken to Ms Millar, the EEO of IT Services at the ATO at Ms Millar’s instigation.  Ms Millar had sought advice as to whether the way the ATO was addressing the applicant’s concerns about X’s conduct was potentially discriminatory.  Ms Millar presented the issue as being whether there could be sexual harassment in the context of a consensual sexual relationship.  The complaint of 17 September 1993 presented a somewhat more complex, and different, picture to that very general one upon which Ms Millar had previously sought general advice.  It included that the relationship between the applicant and X had ceased but that the conduct of X towards the applicant had nevertheless continued.  Upon receipt of the complaint, but apparently only on 29 November 1993, Ms Petherbridge took what I regard as the appropriate precaution in the circumstances of getting advice as to whether she personally should conduct an investigation into the applicant’s complaint given that earlier history.  She was advised that it was appropriate for her to do so.  However, she acknowledged that her recommendation in June 1996 (referred to below) that the applicant’s complaint should be referred by the Sex Discrimination Commissioner (and the Race Discrimination Commissioner) for public enquiry, was or may have been, influenced to a degree by her desire not to be seen to have been influenced adversely to the applicant by that earlier communication with Ms Millar. 

99                  The sex discrimination complaint referred to the history set out above.  It was duly acknowledged.  It was not pursued as promptly as it might have been.  On 20 November 1993, Ms Petherbridge wrote to the applicant expressing regret for delay in addressing his complaint, and explaining that it was due to the heavy workload of the ACT HRO.  In fact, she had not in my view considered the matter at all by then.  She did not raise the possible difficulty from having earlier spoken to Ms Millar about it until 29 November 1993 and the advice she received that she should handle the complaint was not given until 20 December 1993.  By 28 January 1994 Ms Petherbridge had progressed to the point of recording a number of matters she wished to take up or clarify with the applicant before taking further steps in the investigation.  She also sought and obtained legal advice as to whether the allegations of sexual discrimination were open on the facts, and if so whether the complaint properly was directed against the ATO. 

100               On 15 April 1994 the applicant made a further complaint of sexual harassment to the first respondent, in this instance directly against X.  That followed an ATO report of 5 April 1994 on a personal grievance report of 6 November 1993 which the applicant had made to the ATO concerning X.

101               Shortly after that, Ms Petherbridge went on long service leave until late August 1994.  Consideration of the complaint of 15 April 1994 was under the care of the Acting Director of the ACT HRO, and to some extent of Ms Tyler, while Ms Petherbridge was on leave.

102               In June 1994, the applicant made an application to Comcare for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of the disability which, he asserted, arose out of conduct the subject of the sex discrimination complaint, and the work arrangements which he claimed to have been imposed upon him as a consequence in particular of the decision of the fifth respondent of 10 December 1992.  On 12 July 1994 Comcare rejected that claim.  The applicant then sought reconsideration of the claim.  On about 1 January 1995 the applicant lodged with the first respondent an addendum to the sex discrimination complaint, alleging disability discrimination (the disability discrimination complaint) by Comcare arising out of its rejection of his claim.  In May or early June 1995 Comcare affirmed its earlier decision.  On 7 June 1995 the applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the decision by Comcare rejecting his claim under the SRC Act.  On 28 June 1996 the AAT affirmed the decision of Comcare that the applicant was not entitled to payments for disability on the basis he claimed.

103               There does not appear, on the evidence, to have been much progress by the ACT HRO in investigating the sex discrimination complaint between 17 September 1993 and the end of April 1994, a period over seven months, until Ms Petherbridge went on leave.  Then its investigation was diverted or deferred by the compensation claim.  In circumstances set out below, the investigation became inactive until 19 April 1995 at the applicant’s request.

104               The applicant gave evidence that, in May 1994, Ms Tyler advised him to lodge the claim for compensation under the SRC Act.  Ms Tyler denied that in her evidence.  She said she had no experience of Comcare matters, and did not have the practice of suggesting to complainants that they might achieve a satisfactory outcome through the avenue of claims under the SRC Act.  She was not cross-examined on that evidence.  As in other circumstances, the applicant was obviously sensitive to the past stress that he had caused her (and others).  The absence of cross-examination means that it is not appropriate to reject Ms Tyler’s evidence on this issue as I was generally impressed by her evidence.  It is peripheral in any event to the principal issues in the proceedings.  On the other hand, I do not reject the applicant’s evidence that he had some discussion with Ms Tyler regarding a compensation claim under the SRC Act.  As I have observed above, the applicant is a person who is keenly sensitive to nuances of meaning of communication, and sees significance in words used sometimes well beyond that intended by the communicator.  That is a result both of his personality and the particular circumstances in which he found himself.  I think it is probably correct that, in about May 1994, Ms Tyler and the applicant had some conversation about whether the applicant might have a claim under the SRC Act.  From Ms Tyler’s point of view, any such conversation would have been no more than informal discussion.  From the applicant’s point of view, however, he may have perceived it in what he regarded as more significant terms.  The applicant’s conduct, in providing to the ACT HRO from time to time information as to what was happening in respect of his compensation claim (including submissions of 11 September 1995 and 14 March 1996) confirms that, from his perspective, he regarded the ACT HRO as more than merely incidentally interested in the outcome of progress of his compensation claim.  However, as I have noted, the detail of the conversation on the topic is not pivotal to resolution of the present issues. 

105               The applicant’s letter to the ACT HRO of 31 May 2004 suggested that he would await Comcare’s decision on his compensation claim before progressing the sex discrimination complaint against the ATO.  It also referred to a number of new matters or facts which the applicant said were relevant to his complaint.  It also indicated that the applicant proposed to make a complaint of sexual harassment against the ATO in its role as the employer of X.  The then Acting Director of the ACT HRO by letter of 22 June 1994 indicated in response that no further action on the applicant’s sex discrimination complaint would be taken until the applicant further contacted the ACT HRO requesting that it do so.  The applicant ultimately requested that consideration of his complaint be re-enlivened by letter dated 19 April 1995.  On 26 June 1995 he wrote to indicate that he did not wish to pursue the separate complaint against X (made on 15 April 1994) for reasons he then gave in that letter.

106               During the 11 month period whilst investigation of the sex discrimination complaint was in abeyance, the applicant’s work position remained under review.  In April 1994 the fifth respondent needed to speak to the applicant regarding his work.  The context was the applicant’s request to return to the CCS team, at least until he was able to return to the DBA subsection, together with the then structural rearrangement of the IT Services Group.  The fifth respondent also then had the view that X may not then object to the applicant returning to the DBA subsection.

107               The fifth respondent was nevertheless aware of ongoing reservations of some in the Data Services Section to the applicant returning to work there.  The fifth respondent therefore contacted the applicant to arrange a meeting.  The applicant was strongly opposed to meeting the fifth respondent as he was, as he said in evidence, very emotionally distressed at the time.  He was also very sensitive to any action which might be seen as X controlling his working environment or working area.  He did not want to be seen as the victim in any outcome of what was to be discussed.  He was therefore very unresponsive.  On 21 April 1994 the fifth respondent directed the applicant to attend a meeting with him.  The applicant agreed to do so under ‘duress’.  As an indication of the depth of his concern (whether or not justified), on 21 April 1994 the applicant made a grievance complaint under the Public Service Regulations against the fifth respondent for workplace harassment by reason of the fifth respondent’s conduct, in the face of the applicant’s earlier expressed wish to have no further dealings with the fifth respondent (despite the fifth respondent being his supervisor).  The applicant in evidence described that as a plea for help from the ATO.  The grievance complaint against the fifth respondent was duly investigated and found to have no basis.

108               In any event, as the fifth respondent was about to go on leave, the further immediate discussions regarding the applicant’s work placement, or any change to it, were undertaken by the fourth respondent then acting in the position of the fifth respondent.

109               The fourth respondent’s first recollection of a relevant dealing with the applicant was on 3 May 1994.  He had a short meeting with the applicant and others when the applicant sought documents regarding his transfer from the DBA subsection area.  The fourth respondent then made enquiries on the matter.  He was informed that both the applicant and X were removed from the DBA subsection area in February 1993, on the decision of the fifth respondent.  He was informed that the move was not permanent, and could be reviewed after six months.  There was apparently no formal documentation regarding the decision.  The applicant received a copy of the minute from the officer of Personnel Management in which that information was conveyed to the fourth respondent.  The applicant asked, and was informed by, the fourth respondent as to the approximate date when he received that minute.  He was told that it was in mid May 1994.  The only other dealing that the fourth respondent recalls regarding the applicant in 1994 was that he was informed on one occasion that X was upset and wanted to keep out of the way of the applicant.  He reported that information to the fifth respondent, who was about to return to his position.  Both of those events occurred when the fourth respondent was acting in the position of the fifth respondent.

110               In fact, in June 1994 the applicant was transferred to the CCS Section again, under the supervision of the third respondent. 

111               The third respondent at the request of ATO Personnel prepared a report regarding the work performance of the applicant over the period 7 June 1994 to 22 August 1994.  The applicant was reported as performing satisfactorily, with good work output and good working relationships.

112               The applicant complained about the third respondent not permitting him to attend a training course or a user group meeting which, in August 1994, he asked for permission to attend.  The third respondent’s evidence was that he did not think that, given the applicant’s particular role at the time, the proposed training course and user group meetings were of sufficiently direct relevance to his duties, and that the more appropriate attendees would be some persons or some person from the DBA subsection.  He considered that the attendance of the applicant at the expense of someone from that subsection might exacerbate tensions between staff in the DBA subsection and the applicant.  He also had regard to the cost and his available training budget.  The third respondent suggested that the applicant should consider attending a particular training course the following year.  The third respondent’s decision prompted vigorous reaction from the applicant, by e-mail of 9 September 1994, including the threat of a grievance complaint against all staff of the DBA subsection for ‘making malicious and unwarranted attacks against me’, and against the third respondent for denying him the right to use and develop his ‘DB2 skills’.  The training course related to DB2 skills.  He referred also the possibility of X enlisting the help of DBA subsection staff to inhibit his career prospects.

113               On 16 November 1994 the applicant formally made a complaint to the ATO that the third respondent’s conduct amounted to discrimination and victimisation against him.  He believed that the third respondent’s reason for refusing to send him to the conference was discriminatory and victimising.  During this period, the applicant’s grievance complaint against the third respondent was being investigated by the MPRA.  The third respondent made a statement to the MPRA regarding the circumstances of the decision of 10 December 1992 to move both the applicant and X from the DBA subsection at that time.  The evidence does not show the outcome of that investigation.

114               Shortly afterwards the applicant sought the approval of the third respondent to attend a further conference.  The third respondent discussed with the applicant the particular aspects or sessions of the proposed conference which he thought would assist his current work.  The applicant responded by memorandum dated 10 November 1994.  The third respondent did not approve the applicant’s request.  Instead, he requested those staff of the ATO who were attending the conference to brief the applicant and the third respondent about those particular parts of the conference sessions nominated by the applicant as directly relevant to him, after they had attended the conference.  The following day the applicant asked the third respondent to take further and more positive action to address resolution of the antagonism of the DBA subsection staff towards him.

115               Over those months the fifth respondent and the third respondent regularly discussed the prospects of the applicant returning to work in the DBA subsection.  The fifth respondent learned that, in November 1994, the third respondent had engaged EASACT (in effect, the second respondent) to explore the prospect of mediation between the applicant and others in the DBA subsection with a view to the applicant being able to return to work there.  He was informed of the progress of that investigation from time to time. 

116               In fact, on 22 November 1994 the third respondent contacted EASACT to consider engaging it for consultation regarding ‘appropriate process whereby an employee … can move back into a work group who are not keen on him coming back’.  In response, on 28 November 1994 the second respondent met with the third respondent to provide advice regarding the conflict resolution process between the applicant and his former colleagues in the ATO.  That communication is one of the steps which are alleged to give rise to the misfeasance in public office claim.

117               The outcome was that the second respondent would, in the first place, interview the applicant.  The question to be addressed by the second respondent was whether a mediation process might succeed, and therefore might be pursued.  It was not to conduct a mediation.  Again, after the initial impetus, the process was prolonged.  It took some 12 months to complete.  Between 30 November 1994 and 22 December 1994 the second respondent interviewed the applicant to learn of his concerns.  The applicant told the second respondent that he wished to return to the DBA subsection, that there had been difficulties in the past, that he had been under a lot of stress including harassment in the workplace, that he was now a quite different person, and that he was aware that some staff members had reservations about him returning to the DBA subsection although he did not consider there were clear allegations made against him.  The applicant also told the second respondent that he was concerned that he could adequately address staff concerns about his return to work to the DBA subsection.  He said he had reasons to doubt that certain of the concerns of other staff were valid, and that he could not fairly address them as he did not have details of them.  The details had not been flushed out through earlier grievance procedures.  The applicant said he expected the second respondent to revert to him following his proposed meeting with the group of staff, to address the staff concerns once the second respondent was able to specify them to the applicant in detail. 

118               The second respondent is a qualified psychologist, well experienced in counselling in the workplace and in mediation of workplace disputes.  At material times from March 1993 he was an employee of EASACT and was engaged in providing counselling services to staff of the ATO.  There was no cross-examination by the applicant directly challenging his credit and no submission from the applicant that I should not accept his evidence.  He was only briefly cross-examined by the applicant, to elicit certain additional contextual facts.  Nor, in the applicant’s oral evidence, did he disagree directly with any events related by the second respondent.  Their disagreement was on minor or peripheral matters and does not require specific findings. 

119               On 25 January 1995 the second respondent interviewed a group of staff.  There were four or five staff members present.  Their attendance was conditional on their anonymity being respected.  The second respondent had no role in the selection of any staff he spoke to.  The second respondent was aware that the four or five staff present all worked in the same general physical location as the DBA subsection or were part of the DBA subsection work team, so he understood that each would be affected in some way by the risk of coming into contact with the applicant if the applicant were to return to work in the DBA area.

120               The outcome of those two meetings with the applicant, and then with the group of staff, was a letter from EASACT to the ATO (the third respondent) dated 17 February 1995.  That is the first of three allegedly defamatory communications made by the second respondent.  The letter contained three headings:  Background, Meetings, and Recommendations.  The background explained the events leading up to the letter.  The ‘Meetings’ section apparently summarised the views expressed at the meetings of the second respondent with the applicant and separately with the group of staff.  It was in that section of the letter that the alleged defamatory communications were conveyed.  The document contained the following: 

‘On 25 January 1995, I met with a group of staff who prefer not to be named.  They expressed surprise and concern that the result of the conflict resolution process might be Colin returning to the area; it was their understanding that the decision for Mr Dunstan and [X] to move had been permanent. 

Staff were strongly against Mr Dunstan’s return; for a number of reasons, primarily that they felt he was unsuited to managerial work and did not want to work under him again, they felt concern that his work was never subject to review, they are concerned about the possibility of further litigations, and have some concern for their own personal safety.’

It is only that section of that letter of which the applicant complains.

121               The Recommendation was that it would not be appropriate to proceed then with any form of mediation.  The second respondent suggested that the applicant be accurately informed of the full extent of ‘staff reservation and concern about him’ and their strong reluctance to work with him again.  The second respondent also suggested that further meetings be conducted with himself or another facilitator between the third respondent and the applicant, and between the third respondent and the staff who had attended the meeting, to the intent that the third respondent as manager would be present as a communication link between the applicant and the staff group. 

122               I note that the second respondent did not attempt to form any judgment as to the accuracy or validity of the staff’s concerns about the applicant as expressed to him.  It was not his function to do so.  His role was to assess whether there was any point to mediation with a view to resolution of the issues.  He did not think there was.  His suggestion for further meetings was his response to the applicant’s strongly expressed desire to have a ‘right of reply’ in relation to the staff concerns about him, and he also suspected that the applicant may not fully have appreciated the depth of those staff concerns.

123               On 20 February 1995 the third respondent instructed the second respondent to proceed as he had suggested. 

124               Consequently, on 20 February 1995 the second respondent contacted the applicant and informed him that the second respondent did not consider mediation would resolve the staff concerns about the applicant’s potential return to the DBA subsection.  The second respondent and the applicant met on 24 February 1995.  The applicant then had a copy of the second respondent’s letter of 17 February 1995.  He expressed concern that it may have been read as assessing the appropriateness or otherwise of the applicant’s return to work in the DBA subsection.  To avoid any potential use of the letter of 17 February 1995 in that way, the second respondent agreed with the applicant to write a further letter to the ATO (the third respondent).  He did so by letter of 6 March 1995 in the following terms:

‘I spoke again on Friday 24 February with Colin Dunstan, EASACT as agreed in your letter of February 1995, in order to debrief him regarding my letter to you of 17 February 1995. 

Mr Dunstan expressed a concern that my letter may be read as an assessment of the appropriateness or otherwise of him returning to work in DBA subsection. 

I therefore agreed with him to re-emphasise with you these points:-

1.         As you know, my contracted involvement with you was to recommend whether a mediation process between Mr Dunstan and some staff members who hold concerns about him, proceed. 

2.         This being so, I was not and am not involved in any form of investigative or assessment capacity regarding Mr Dunstan’s desire to return to DBA subsection.

3.         Consequently, I made no attempt to interview all staff or even a representative sample of staff in DBA.  My references to staff in my letter apply to those who attended a meeting with me. 

I am still willing to proceed with my recommendation of facilitating meetings between yourself and Mr Dunstan, and yourself and staff members.  Colin indicated that he will advise me about his participation in such a meeting.’

125               The proposed further meetings did not immediately take place. 

126               The second respondent’s next involvement was on 10 May 1995.  The third respondent contacted him to indicate that the applicant wished to procure a written list from the second respondent of the concerns raised with the second respondent in that interview with the group of staff.  The third respondent told the second respondent that the applicant was not keen to proceed to the further meeting suggested by the second respondent (at which the third respondent was to be present) without a written list of those staff concerns.  The second respondent procured the permission of the staff involved in the earlier meeting to provide to the applicant a list of their concerns.  He then prepared the list of the seven concerns of the staff, which was detailed in a letter from him to the ATO (the third respondent) on 11 May 1995.  That is the second allegedly defamatory letter.

127               The applicant complains of the expression of those concerns (other than the first) in the letter of 11 May 1995.  It is necessary to put the letter into the context of all the communications.  The letter first commenced by referring to the telephone conversation between the second respondent and the third respondent in which the second respondent was asked to provide a summary of his discussion with the group of the staff regarding a possible mediation between themselves and the applicant.  It noted that the summary, when provided, would be given to the applicant prior to a meeting between himself, the second respondent and the third respondent with the purpose of facilitating communications as set out in his earlier letter of 17 February 1995.  The letter also referred to the second respondent’s letter of 6 March 1995 referred to above explaining the limited role of the second respondent.

128               The letter continued:

‘Consequently I am not able to provide details pertaining to any particular incident or events.  I am providing only a summary of concerns as expressed by the group of staff I met with on 25 January 1995.

These concerns were:

1.         That these staff understood an agreement was reached whereby Colin would not return to the DBA subsection, and wonder why this appeared to be re-raised as a possibility. 

2.         That although Colin is regarded as an excellent programmer, his management skills are perceived as very poor. 

3.         Comments related to this were that Colin can be aggressive, moody and unpredictable, that he isolates people and encourages factions, that he takes the “best work” for himself;  and that it is believed he takes notes on what other staff are doing. 

4.         It was suggested that Colin’s work is often not subject to review, and that he had an almost complete monopoly on the system. 

5.         There were also concerns about Colin’s tendency towards litigation which makes people reluctant to be open towards him. 

6.         It was considered that Colin has had such a detrimental effect on staff morale that some staff do not want to work with him again. 

7.         Finally there was some degree of concern that Colin has a potential for physical aggression due to what staff perceive as his bitterness. 

I reiterate that I have not made any assessment of the accuracy or otherwise of these concerns.  I am providing them now for our agreed purpose of further communication between all parties involved.’

129               A copy of that letter was provided to the applicant. 

130               There followed a meeting of 19 May 1995 between the applicant, the second respondent and the third respondent.  Each of the seven listed concerns was discussed.  The applicant’s responses were noted.  The second respondent summarised the applicant’s responses in a draft letter proposed to be sent by the second respondent to the third respondent.  He forwarded that draft letter to the applicant for his comment.  The applicant was told that his responses as finally expressed would then be put to the group of staff from the Data Services Section in a meeting at which the second respondent and the third respondent would also be present.  (I interpose to remark that the second respondent did not distinguish between those working in the DBA subsection and those working in the Data Services Section, the larger group working on the same floor of the building).  I accept that, at that meeting, the applicant made it clear that he had not agreed that he should not return to the DBA Subsection without the consent of X, or without the consent of other staff in that area.  The applicant responded in writing by a letter to the second respondent of 15 July 1995.

131               The process of incorporating the applicant’s additions and refinements in the report following the meeting of 19 May 1995 was incomplete when the second respondent had a period of long service leave.  In the meantime, the applicant contacted EASACT in his absence and met with another counsellor, George Magdulski.

132               The second respondent was cross-examined by the applicant about the contents of the applicant’s letter of 15 July 1995.  His concern, as put to the second respondent, was that the group of staff interviewed were not representative.  The applicant provided the second respondent with a list of the names of staff that he had directly supervised, and suggested that one only of them (if any) were in the interview group.  He therefore put to the second respondent that the complaints did not accurately represent concerns of staff that he would work with.  For present purposes, it is not necessary to resolve the applicant’s concerns.  In cross-examination, he agreed that the second respondent ultimately conveyed his concerns as represented in the letter of 15 July 1995, at least at a general level, although the applicant maintained some reservations about the composition of the group of staff representatives.  He also accepted that the letter of 5 December 1995 referred to below accurately represented the applicant’s concerns. 

133               There was nothing sinister about the selection of the persons with whom the second respondent consulted.  They were not selected by the second respondent, nor by the third respondent.  The staff with whom the second respondent consulted were identified to him as persons willing to participate by Ms Hand.  Ms Hand worked for the ATO from 1990, and from about the middle of 1991 in the DBA subsection in which the applicant was then one of the four team leaders.  Periodically thereafter, the applicant was her direct manager.  She was also the union representative in that area.

134               In her capacity as the union representative, Ms Hand was informed of, and suspected, a relationship between the applicant and X.  She had counselled X about being careful regarding behaviour which might attract the attention of other staff.  In 1992 X also spoke to Ms Hand about the relationship.  She said that she wanted to end it, but could not do so.  Ms Hand advised her to speak to the third respondent.  Subsequently, X moved to another section in a different part of the building (apparently the move following the agreement of 30 August 1992).  After a few months, X complained to Ms Hand that she was being ‘punished’ while the applicant remained in the DBA subsection.  Ms Hand referred that comment to the third respondent.  It was shortly afterwards announced to the DBA subsection personnel generally that both the applicant and X would be moving to separate sections within the ATO (as they each did soon after December 1992).

135               When the possibility of the applicant returning to the DBA subsection was subsequently raised by the third respondent, Ms Hand discussed that with some staff in that area.  She arranged a meeting with Ms Millar as the EEO of the IT Services Group within the ATO.  The meeting took place with Ms Millar on 14 May 1993.  It was attended by the 10 ‘senior technical people’ in the DBA subsection or in the Data Services Section.  Their collective view was that the applicant should not return to the DBA subsection, partly because they considered the applicant would then be treated differently from X, and partly because they did not like his management style.  It is unnecessary presently to go into the details of why that was so.  Ms Hand conveyed those views to the third respondent.

136               When the third respondent then arranged the engagement of the second respondent, Ms Hand was informed.  She recalls that the second respondent held three meetings, two early in 1995 (the second respondent says only one meeting was held in early 1995, on 22 January 1995) and one late in 1995 (the second respondent says that took place on 27 November 1995).  There was also a meeting with Mr Magdulski on 12 October 1995.  There were several staff from the DBA subsection present at those meetings.  They were those persons who Ms Hand had asked to attend and who were prepared to do so. In the case of the meeting of 12 October 1995, the applicant says he arranged the meeting and the attendees.  They included both senior and junior staff.  The personnel at those three meetings were not in all instances exactly the same.  Ms Hand confirmed that the second respondent’s documents of 17 February 1995, 11 May 1995 and of Mr Magdulski of 12 October 1995 reflect accurately the matters which were then discussed.

137               Ms Hand said, and she was unchallenged in cross-examination, that ATO staff in the DBA subsection were quite fearful of the applicant returning to work there, not only because they regarded him as so committed to return to work in that area that he would (for example) take legal action against anyone he perceived as wrongfully opposing that course, but also because they feared for their physical safety.  The applicant did in fact institute various proceedings against X for lost wages (twice) during 1996, for defamation (ultimately five actions between 1993 and 1995), and he subpoenaed the notes of the third respondent, EASACT, and a number of employees in support of those actions.  The claims against X were consolidated with a claim against two other employees of the ATO.  They were dismissed after a hearing in July 1997.

138               Although the applicant did not return to work in the DBA subsection, in 1995 he was about to return to work on the same floor of the building.  According to Ms Hand, some DBA subsection staff then refused to work in that area.  That was reported to the fifth respondent.

139               The second respondent was questioned by the applicant about the composition of the staff group he interviewed.  He was concerned that his responses might disclose the names of those persons, and that he had agreed for their names to be confidential.  One of those persons was Ms Hand.  She was the contact point.

140               To revert to the findings about the second respondent’s role, on 12 October 1995 Mr Magdulski had a meeting with four staff members ‘each of whom had worked with the applicant’ and had been invited by the applicant to attend.

141               It is unclear whether the four people who met with Mr Magdulski on 12 October 1995 were some of the same people as those who had previously met with the second respondent.  There is no direct evidence on the topic.  Mr Magdulski’s note indicated that those people generally regarded the applicant as very helpful and patient, with strong technical expertise.  They said he gave time, effort and thought to the development of the skills of junior staff.  They said he was a very good mentor.  They said he usually exhibited a placid manner, and that interactions with others generally showed rapport and respect.  The document also recorded the following:

‘However, he was not afraid to make criticisms of senior people, these could, on occasion be ‘impolitic’.  He could also appear strong headed and opinionated, sarcastic and arrogant.  His favouring of [X] created some disaffection amongst his staff.  He is seen as very committed to providing service of a very high technical quality.  This seems to be the primary focus of his attention.’

142               The evidence is not clear as to how the process precisely evolved in the latter part of 1995.  On 5 November 1995 the applicant wrote to Mr Magdulski seeking to progress the resolution of what he then apparently understood as an ongoing mediation process.  He noted that the ‘resolution of differences’ between himself and other staff had ‘seemingly been achieved’.  Presumably, the basis for that understanding is what happened at the meeting on 12 October 1995.  His letter referred to certain misperceptions about his situation by the staff, including that his move from the DBA subsection in early 1993 had been permanent when, as I have found, the fifth respondent regarded it as reviewable in certain circumstances after about six months, and according to the minute of ATO Personnel of 6 June 1993 to which the applicant referred, it was to be reviewed in six months. 

143               On 6 November 1995 Mr Magdulski wrote to the applicant indicating that a meeting of staff, to be facilitated by the second respondent, was to take place on 27 November 1995.  The applicant was given a copy of Mr Magdulski’s notes of a meeting with members of the staff of the ATO of 12 November 1995.  The applicant was to indicate whether he wanted the material which had been sent by the applicant to Mr Magdulski to be available to staff members prior to or at that meeting. 

144               Upon his return from leave, the second respondent then met with the same or almost the same group of staff who had initially expressed concerns to him about the applicant, and with the third respondent.  The meeting took place on 27 November 1995.  It was the last step in the agreed process of ensuring that the concerned staff on the one hand, and the applicant on the other, had the opportunity to address and understand each other’s viewpoints.  The action taken by Mr Magdulski in October and early November 1995 appears not to have been so specifically in pursuance of that course previously planned by the second respondent.  It is also not clear whether the staff members he met were the same as those at the meeting Mr Magdulski conducted on 12 October 1995.  The applicant has identified, or believes he has identified three of the staff attendees.  He said some of them worked directly in the DBA subsection.  Given the outcome of the meeting of 27 November 1995, and the evidence of Ms Hand, it is unlikely that all the same persons attended that meeting as those who attended the meeting with Mr Magdulski on 12 October 1995.  The significantly different emphasis in the reported outcome of the meeting with Mr Magdulski may also be the outcome of his limited involvement.  He did not give evidence. The reported outcome indicates (as the third respondent also said) the applicant had strong positive qualities in his work.  Nevertheless, the whole of the evidence leads firmly to the view that there was a real ongoing concern about the applicant returning to work in the DBA subsection.

145               On 5 December 1995 the second respondent prepared a report to the ATO (the third respondent) regarding the meeting of 27 November 1995.  Under the general heading ‘Staffing Matters’ appears the material which is alleged to give rise to the third defamatory allegation.  The report runs to some two and a half pages, of which four sentences only are the subject of complaint.  Again it is necessary to ensure that those particular sentences are put into the context of the letter as a whole.

146               The report of 5 December 1995 from the second respondent to the third respondent was sent by facsimile including a cover sheet.  At the same time, a further letter was sent, dated 5 December 1995, from the second respondent to the third respondent which summarised his brief and the steps taken, and enclosed the report of 5 December 1995 described as ‘the summary of Colin’s responses to staff concerns and the summary of the meeting of 27 November with recommendations’.  They were apparently faxed on 6 December 1995 although the cover sheet is dated 4 December 1995.

147               There was a third document enclosed with the facsimile.  It was a further letter also of 5 December 1995 from the second respondent to the third respondent (also copied to the applicant) referring more particularly to the meeting with staff on 27 November 1995.  It describes the materials presented at that meeting.  It concluded:

‘Clearly the situation is delicate for sensitive personal issues being involved.  At this stage there is no indication of either side being able to appreciate others’ points of view, nor that a harmonious workplace would result if they were to work together. 

We are therefore no closer to overcoming the tension arising from concern at Colin’s potential return by some staff on one side, and Colin’s frustration at this obstacle to his return on the other side.

Clearly management now need to decide whether Colin’s needs as an individual outweigh several staff members concerns in the context of achieving the most effective team productivity and working relationships.’

148               On 6 December 1995 the second respondent sent to the applicant copies of two of the documents of 5 December 1995, namely the summary of his meeting with the third respondent held on 27 November 1995, and of the revised version of the applicant’s original concerns and the responses of the applicant.

149               The applicant did not agree with the conclusions of the second respondent.  He said that problems with such relationships are normally dealt with by grievance procedures, so that such concerns are brought out in the open and can be addressed.  Otherwise, the applicant said, they may remain anonymous and cannot be confronted or tested.  Indeed, the applicant thought at the time (albeit as I find erroneously) that the procedure undertaken by the second respondent may not have been genuine and may simply have been an attempt to distance the applicant’s return to work in the DBA subsection further in point of time.

150               Ultimately, as noted below, by December 1995 it was apparent that that avenue would not provide a means for the applicant to return to the DBA subsection for some time in the light of the ongoing and unresolved concerns of the staff in the Data Services Section about the applicant returning to that section.  The applicant was advised of that by the third respondent by letter of 4 January 1996.

151               The report of 5 December 1995 about which the applicant complains commences by referring to the background including that the report of 5 December 1995 covers the applicant’s response to the staff concerns which were raised in draft in the document of 12 July 1995 previously provided to the third respondent.  The letter refers to the meeting of 27 November 1995 in which the applicant’s responses were presented.  Under the heading ‘Colin’s perceptions of staff concerns’ there is first a reference to certain general matters, namely the applicant’s doubt as to the validity of the concerns as the group of staff did not all work ‘directly to him’ and (he thought) may not represent an adequate sample of staff who ‘did work to him’.  It also noted the applicant’s desire for clarification about the relationship between the concerns of some staff regarding his possible return to the DBA subsection, his relationship with X which he describes (in his response in July 1995) as her harassment of him, and the decision to move him from the DBA subsection.  The letter then addresses separately the seven specific items of staff concern previously set out.  In each instance there is a one-line identification of the particular concern.  There is then detail of the applicant’s response to that concern. 

152               Item 3 contained that part of the report which is alleged to be defamatory.  It reads:

‘Colin can be aggressive etc.  He takes notes on staff activity.

Colin states that at the time he was suffering from severe depression and that moods and unpredictability were hallmarks of this.  He believes this is no longer the case. 

Colin states that he has not been friendly to the anonymous group of staff who hold strong criticism of him for obvious reasons.

Regarding factions, Colin said that he isolated himself rather than other people;  that he endeavoured to treat people equally on their merits and requirements, and that tension between factions already existed which Colin found irritating.

Colin disagreed that he kept ‘the best work’ for himself.  He felt criticised occasionally for giving the best work to other sections.

Finally, regarding note taking;  the only notes Colin says that he took were those with details required by Don for weekly or monthly reports.

Don Bartley later stated that these notes were not those that staff held concerns about.’

153               In the Amended Statement of Claim, the applicant quotes and complains only of the first and last two paragraphs of that quoted section dealing with item 3 of the staff concerns. 

154               The report concludes under the heading “Summary”:

‘This report sets out summary of Colin’s responses to the concerns held by some staff about him.  Colin felt pleased that at last some of the concerns had been expressed to him so that he could reply.  He feels that many are based on misunderstandings and hopes that this report may assist in resolving issues of concern.’

It noted the next step was to provide the report to staff in a meeting with them, the second respondent and the third respondent.

155               The applicant in evidence said that the report of 5 December 1995 left out a couple of points which he had raised with the second respondent.  He did not otherwise criticise its contents as inaccurate.  In cross-examination of the second respondent, the applicant put to him that the notes the third respondent is referring to are unclear.  The second respondent indicated that he understood from the earlier staff meeting that their concern was about notes taken by the applicant of what other people were doing, although the applicant had denied that he was doing so.  The cross-examination did not throw any additional insight into the context or meaning of the contents complained of.

156               The second respondent’s evidence-in-chief was that, in respect of all the representations made by him about the applicant in the correspondence referred to in the Amended Statement of Claim, his sole purpose in accordance with his retainer was to identify whether the apparent conflict between the applicant and other staff members could be resolved by mediation.  For that purpose his representations were made only to the ATO or to the applicant himself.  He claims that both the ATO and the applicant had an interest in having that information.  He further asserts that all of the representations were reasonable in that they were an accurate representation of concerns raised by some members of the staff, and that he always made plain that any representations conveyed in those letters in relation to the applicant were based upon statements made by staff members concerned.  He also comments that the representations now complained of by the applicant contained in the letter of 11 May 1995 from him to the second respondent were documented by him at the express request of the applicant.  He was not cross-examined on those assertions.

157               The applicant is understandably somewhat critical of the eleven month process in 1995.  It was prolonged.  Part of the cause was the need for precision in the notes and records maintained, including securing the applicant’s agreement to their accuracy.  A large part of the delay was due to the second respondent’s absence on leave.

158               The delay however served to feed the applicant’s concerns at the time as to the genuineness of the process.  He said in evidence that the delay, once the decision was taken not to mediate, might suggest a lack of genuineness in the subsequent process.  He said it might not provide an indication of a fair and objective decision-making process.  He thought that the whole process should have taken up to about three months.  In fact, by February 1995 the second respondent had recommended that there was no real point to a mediation.  The process undertaken by the second respondent during 1995, although not a mediation, was nevertheless exploring the question of whether the applicant could return to work in the DBA subsection by endeavouring to promote a better understanding in the applicant and in the staff of the perspectives of the applicant and of the staff who were concerned about his return to the DBA subsection, and then a tolerance of or insight into the applicant’s position.  The process was not successful.

159               The applicant suspected that the sixth respondent through the third respondent had decided not to re-employ the applicant in the DBA subsection and that the delay was simply in the hope that the problem would go away.  It is easy to understand why the applicant has that view.  However, in the light of the evidence, especially of the second respondent, I think the delay is explained.  There was an early decision not to mediate.  That was conveyed to the applicant.  Then the second respondent recommended exchanging the views of the applicant and of staff members to see if a greater understanding of their respective viewpoints could be reached.  Although the process was a prolonged one, in the context of the applicant’s very careful attention to all communications and the clear need for the second respondent fully to understand the applicant’s concerns and comments, and to reflect them accurately in his discussions with the group of staff, caution on the part of the second respondent was appropriate.  Delay of some further months was then due to the second respondent’s absence on leave.  In my view the delay is explained.  It does not indicate that the sixth respondent (the ATO) had finally decided by February 1995 not to reinstate the applicant into the DBA subsection and was simply stalling in the hope that the problem of the applicant’s redeployment would go away.  The contrary is the case.  Indeed, the applicant in cross-examination got to the point of accepting that the second respondent’s process during 1995 was an ongoing attempt to have the applicant return to work in the DBA subsection.  The second respondent’s only other involvement in matters pertaining to this proceeding was in January 1996 when he met with Ms Petherbridge of the ACT HRO at her invitation.  Nothing turns on that meeting from the point of view of the current proceedings.

160               The third respondent during 1995 largely left the second respondent to proceed as he considered appropriate.  He had briefed him on 28 November 1994.  The second respondent met with the applicant, and with a group of staff from the Data Services Section.  The third respondent received the second respondent’s report of 17 February 1995.  He instructed the second respondent to proceed as the second respondent had suggested.  He received the second respondent’s further reports of 6 March 1995 and 11 May 1995, and from Mr Magdulski of 12 October 1995 and Mr Magdulski’s subsequent correspondence.  He discussed those with the applicant. 

161               The applicant reported to the third respondent on 4 May 1995 of some allegedly harassing telephone calls he had received at work, and which he suspected had come from X.  The third respondent investigated the claim.  He ascertained that X had not been at work at the ATO when the telephone calls were made.  He was unable to take the matter further.

162               In mid-1995 the physical re-organisation within the ATO led to the Application Support and Consultancy Section being re-constituted on the fourth floor of the CPS Tower.  That would have led to the applicant working in an open plan workspace on the same floor as those in the DBA subsection.  When that plan became known, the third respondent received a number of expressions of concern from staff in the DBA subsection about that.  The problem was alleviated when the applicant took long service leave from 31 May 1995 until the end of December 1995.  In that period, in addition to dealing with the second respondent, the third respondent had a meeting with Mr Magdulski on 31 October 1995, who was then acting in lieu of the second respondent for EASACT while the second respondent was on leave.

163               In my judgment, the third respondent had not decided by 1995 that the applicant would not be returned to the DBA subsection.  He was not treating the second respondent’s process simply as a delaying strategy in the hope that the issue of the applicant’s return to the DBA subsection would go away.  He was monitoring a process which he had instigated in the hope of resolving that issue, ultimately (he hoped) by the applicant returning to work there.

164               During much of the first half of 1995, the ACT HRO was not actively pursuing investigation of the applicant’s sex discrimination complaint of 17 September 1993 in the circumstances set out above.  The investigation was re-enlivened by the applicant’s letter of 19 April 1995.

165               The investigation of the applicant’s complaint against the ATO then proceeded through the ACT HRO.  The comments of the ATO were obtained on the allegations and supporting material, and were provided to the applicant.  In response to a specific enquiry, the applicant indicated that the complaint of discrimination against him on the ground of race was based upon his claim that the ATO’s alleged adverse treatment of him was influenced by the Vietnamese cultural background of X. 

166               The applicant also extended his complaint to a complaint against Comcare for disability discrimination.  The complaint was for the delay in the internal review of its decision of 12 July 1994 (subsequently affirmed in June 1995), and for treating the applicant’s claim less favourably because of his disability.  The compensation claim itself was rejected because the decision maker was not satisfied that the condition suffered by the applicant was caused or contributed to by his employment.  That complaint against Comcare was separately investigated by an officer of the ACT HRO.  On 7 June 1995 the Acting Regional Director of the ACT HRO recommended to the Disability Discrimination Commissioner that she not enquire further into the disability discrimination complaint.  On 15 June 1995, the Disability Discrimination Commissioner of the first respondent informed the applicant that it did not propose to inquire into his complaint as he would follow the review proceeding under the SRC Act.  On 25 June 1995, the applicant required the referral of his disability discrimination complaint  concerning Comcare to the President of the first respondent, pursuant to s 71(5) of the DD Act.  That referral was duly made.  The President of the first respondent on 16 August 1995 expressed the view that the available procedures for review of Comcare’s decision (review of the decision by the AAT) offered a suitable alternative avenue for redress of his complaint about Comcare.  The President however deferred a decision until the sex discrimination complaint had also been fully investigated.

167               Ms Petherbridge understood that she had no residual power nor any residual function with respect to the disability discrimination complaint against Comcare thereafter.  Nothing turns upon whether she was right or incorrect in that view.

168               As noted, the latter half of 1995 saw the applicant on long service leave.  He hoped the processes of the second respondent would lead to softening of the attitude of those staff concerned about his return to the DBA subsection.  There was some pressure on the ATO in mid 1995 when physical relocation or re-arrangement of certain subsections would have led to the applicant working on the same floor as the DBA subsection, but the immediate pressure was eased by the applicant going on leave.

169               In late 1995, as the applicant’s period of leave was coming to an end, the third respondent again addressed the work to which the applicant would return.  The applicant wrote to the third respondent on 16 November 1995 requesting that he be returned to his former work, and he asked specifically for reasons for not being permitted to do so if that was the decision.  The third respondent sought to arrange a meeting with the applicant to discuss that.  The applicant declined to meet with the third respondent while the applicant was on leave.  He said that he would do so only when he returned to work as projected on 2 January 1996.  The applicant also on 4 December 1995 asked the third respondent for reasons for the decision, on the applicant’s request of 21 March 1995, refusing then to let the applicant return to work in his former position in the DBA subsection.  He referred to his ‘entitlement’ to such reasons under the ADJR Act.  He also (understandably) expressed concern that little progress had been made about resolving the issues being addressed by the second respondent during the period of his long service leave.  In fact, as the second respondent indicated, on 5 December 1995 the second respondent reported that there was no progress made in overcoming the tension arising from concerns in the Data Administration Section about the applicant’s potential return to the DBA subsection on the part of some staff on the one hand, and of the applicant’s frustration at that obstacle to his return to the DBA subsection on the other.

170               The third respondent decided that the applicant should return to work in January 1996 in an alternative work placement.  The applicant declined to attend during his leave to discuss that with the third respondent.  On 21 December 1995 the fourth respondent wrote to the applicant informing him of a new work placement and location in the IT Services Costing Project, located on the seventh floor of CBS Tower.  The third respondent also on 4 January 1996 wrote to the applicant to inform him of the unsuccessful outcome of the process undertaken by the second respondent and of the decision that the applicant could not then return to work in the DBA subsection.

171               That letter of 4 January 1996 erroneously referred to an ‘agreement’ in late 1992 between the fifth respondent, the third respondent, the applicant and X regarding the circumstances in which either the applicant or X might return to work in the DBA subsection.  There was no agreement, but a decision by the fifth respondent supported by the third respondent for reasons which are set out earlier in this judgment.  The third respondent acknowledged that the use of the word ‘agreement’ in that letter was in error and reflected an incorrect way of referring to the decision of the fifth respondent of 10 December 1992 and the process by which it was notified to the applicant and X and implemented.  Nothing turns on the mis-use of that word in that letter.

172               The letter of 4 January 1996 referred to the involvement of EASACT and continued:

‘The EASACT process concluded that a reconciliation between yourself and existing DBA staff is unlikely and that there is “no indication of either side being able to appreciate the other’s point of view, nor that a harmonious work place would result if they were to work together”.

Without a reconciliation occurring the workplace would be placed under considerable tension and its ability to perform its function badly effected.  For obvious reasons such a situation is unacceptable.

Against this background and following the completion of the EASACT process FAC(ITS), AC(ISS) and myself jointly decided that in the general overall interests of the staff and the organisation (and the DBA function in particular) it would not be possible for you to return to your former position in the foreseeable future.

I had hoped to communicate this to you firstly on 28 November 1995 and when this did not occur on 3 December 1995.  I am sorry that you found yourself unable to meet with me on either of these occasions.’

173               The fourth respondent became involved again in the applicant’s circumstances around this time.  In 1995, he had attended a meeting of the ACT HRO convened by Ms Petherbridge.  He was asked to attend, so he could generally be aware of the meeting and its outcome in the event that he was acting in the position of the fifth respondent.  Apart from the applicant and Ms Petherbridge, the third respondent and the fifth respondent were also present.  He was also kept informed by the fifth respondent from time to time on how the applicant’s concerns or issues were being addressed, including (he learned) through the second respondent.  He also learned that the applicant was to return to work after a lengthy period of long service leave in about late 1995.  He became directly involved in the management of the applicant’s return to work.  He was aware of the action taken by the third respondent to that end.

174               The applicant’s evidence was that, when he returned to work on 4 January 1996, he found the new physical location unpleasant and makeshift, and he was suspicious of the motives of those placing him there.  He suspected it was an attempt to socially isolate him from his previous colleagues or his new supervisor.  The fourth respondent disputed those motives.  He did not specifically select the applicant’s particular workplace on the relevant floor.  He was not cross-examined to challenge that evidence.  As I have said, he was a straightforward and impressive witness.  I am sure the applicant’s attitude was influenced by his desire to return to work in the DBA subsection, located on another floor of the same building, together with his past experiences as he perceived them. 

175               Shortly after his return to work, within a day or so, the applicant again went on sick leave.  Later in 1996 discussions resumed to have the applicant return to work.  The fourth respondent was again involved in those discussions.  A number of options had been proposed to the applicant, all of which he found unacceptable.  The fourth respondent, in that context, wrote a minute headed ‘ATO National Office Minute’ dated 24 April 1996 to Neville Viney, Manager of Occupational Health and Safety/Case Manager.  It concerned the applicant’s return to work.  Its express purpose was ‘to provide information as required by the OH&S Minute dated 19 April 1995’.

176               The minute of 24 April 1996 is a document which the applicant alleges is defamatory.  The minute has four headings:  Introduction, Duties and Responsibilities Offered, Training and Work Location.  The applicant alleges that a section of that minute under the heading Work Location is defamatory.

177               The Introduction refers to the ATO expectation that its senior IT staff are capable, flexible and responsive to the ATO needs, and are allocated to priority projects as they arise.  The next section refers to three projects in which the applicant was offered work, two of which were noted as being current and ‘still unresourced’, and two further imminent projects under consideration for the applicant.  The training section was brief.  It simply refers to the fact that training of staff for a particular project when allocated to it is given.  Under ‘Work Location’ the following appears:

‘I am mindful of the need to settle Mr Dunstan back into a supportive work environment.  However, I would not propose locating Mr Dunstan on the same floor as the Data Base team for the same reasons that Mr Dunstan has difficulties working in certain locations.  I am obliged to take into account the concerns of a number of staff in reaching this position.

I will work with Mr Dunstan and to arrive at a satisfactory work location within these constraints and when we have agreed to the work that he is to perform.’

The memorandum noted also that certain impending accommodation reorganisation within the ATO would make it more difficult to accommodate placement concerns of staff in the future. 

178               It is the words in the first paragraph quoted above, after the first sentence, which the applicant alleges are defamatory. 

179               The fourth respondent took the view at the time (unchallenged in cross-examination) that the unresolved issues between the applicant and some Data Services Section staff made it unwise and inappropriate to re-locate him on the same floor as the DBA subsection staff.

180               It was also in the first months of 1996 that the third respondent became directly involved in addressing the applicant’s sex discrimination complaint to the first respondent.  A copy of the letter to the ATO from the ACT HRO (Ms Petherbridge) of 7 December 1995 was provided to him.  He and the fifth respondent met Ms Petherbridge on 18 January 1996.  On 23 January 1996 they provided her with copies of the correspondence with EASACT.  The third respondent also informed the second respondent that that material had been provided to the ACT HRO.  He gave the second respondent on 24 January 1996 a copy of that material, including the third respondent’s letter to the applicant of 4 January 1996.

181               The third respondent says that he sent that material to the second respondent to inform him of the ATO decision regarding the applicant (following the concluding remarks of the letter from the second respondent of 5 December 1995 referred to above) and so that the second respondent could be properly informed when he came to be interviewed by Ms Petherbridge regarding the sex discrimination complaint to the first respondent, and so that the second respondent would be fully briefed in the event that EASACT became further involved in providing assistance either to the ATO or to the applicant.  He also wished to know if the second respondent could identify the source of a particular unsigned record of a meeting with Mr Magdulski.  The third respondent followed up with the second respondent the identity of the source of that document, but was unable to identify the source of that record.  It records a picture inconsistent with the assessment of the second respondent as to the existence of staff concerns about the applicant returning to the DBA subsection.  Its author remains unidentified, and so it is therefore of little or no weight.  No suggestion was put to any of the witnesses to suggest its source.  The third respondent was cross-examined about those communications and his motives for them.  The cross-examination did not extract any evidence of any other motive or reason on the part of the third respondent for those communications. 

182               The applicant alleges that the re-publication of the letter of 4 January 1996 to the second respondent defamed him in the passage referred to.  He also alleges that it was part of the information which, in the context of its publication and its content, was false and misleading, and known to be so, by the third respondent so that the claim based upon misfeasance in public office is made out.

183               During 1996, the ACT HRO investigation and consideration of the applicant’s sex discrimination complaint to the first respondent of 17 September 1993 continued.  In addition, by letter of 8 February 1996 the applicant made a further complaint of ‘victimisation’ against X, and requested that she be a named respondent to his complaint of sexual discrimination, sexual harassment and racial discrimination against him.  He provided detailed information in support of his request.  Ms Petherbridge thereupon joined X as a respondent to the sex discrimination complaint.  She sought X’s comments on the allegations.  Those comments were received with a letter of 4 April 1996.  The enclosed material was voluminous.  The applicant subsequently commented on that material in his letter of 16 April 1996 and in an affidavit of 14 May 1996. 

184               There is a dispute between the applicant and Ms Petherbridge about how the letter of 8 February 1996 came about.  The applicant claimed that he was invited or asked to send such a letter by Ms Petherbridge, and that Ms Petherbridge in fact gave him part of the material for that complaint from the file of the ACT HRO (which the applicant had previously provided in support of his complaint) to include in the letter.  Ms Petherbridge said that that was ‘highly improbable’.  The applicant pointed to a letter from Ms Petherbridge to the applicant of 7 December 1995, enclosing some dot points of notes for a proposed conciliation conference, including the possible pursuance of information from X, as confirming his version of events.  I do not need to resolve that dispute.  The applicant is a capable and intelligent and independently minded person.  He had earlier decided not to complain against X specifically (as noted above).  Whether or not his decision to make such a complaint against X in February 1996 was motivated by a conversation with Ms Petherbridge, I have no doubt that he would have sent the letter of 8 February 1996 only if he considered it appropriate to do so.  The particular events which prompted him to do so – whether at the suggestion of Ms Petherbridge or not – is not a matter is not of any real significance in resolution of the issues presently before the Court.

185               The applicant, apparently before the AAT decision on his compensation claim but also apparently after a long delay, also on 2 February 1996 requested Comcare to revisit his claim.  On 16 April 1996, it again denied liability for it.  The applicant sought reconsideration of that decision.  The third respondent was, to some degree, involved in providing information to Comcare about the claim.

186               On 16 February 1996 he was requested to provide information as the applicant’s supervisor with respect to matters which the compensation claim raised.  He did so.  As noted, the compensation claim was decided by Comcare adversely to the applicant on 16 April 1996.  When the applicant sought internal review of the Comcare decision, the third respondent was again asked by the fourth respondent to prepare the response of the ATO.  He responded by minute of 27 June 1996, and by subsequent minute of 4 July 1996 to ATO Personnel.  His minute was, he understood, to provide the information to found the basis of the ATO response to the internal review.  It was then sent to Comcare on 5 July 1996.  The memorandum of 4 July 1996 is alleged to be defamatory, not in its own terms, but because it included letters from the second respondent to the third respondent of 17 February 1995, 11 May 1995 and 5 December 1995 and the third respondent’s letter to the applicant of 4 January 1996.  No content of the memorandum of 4 July 1996 is itself said to be defamatory.

187               It is unclear precisely what steps were taken by the ACT HRO to pursue the applicant’s complaints of sex discrimination over the latter part of 1995.  In November 1995 Ms Petherbridge attempted to arrange a conciliation conference between the applicant and officers of the ATO.  The applicant was informed of that proposal and that process by letter of 7 December 1995 with (as noted in the previous paragraph) a document containing a dot point list of topics for the proposed conciliation conference.  The applicant requested Ms Petherbridge to speak to the second respondent and to Mr Magdulski of EASACT before the conference and she did so. 

188               The fifth respondent learned of the applicant’s complaint to the first respondent through the HRO ACT.  He saw the letter from the director, Ms Petherbridge, of 7 December 1995 proposing a conciliation conference with the fifth respondent and the third respondent in attendance, and also inviting comments from the ATO on the voluminous material submitted by the applicant in support of the complaint.  The material assembled by or at the direction of the fifth respondent for the ATO concerning his dealings with the applicant was then given to Ms Petherbridge at a meeting on 18 January 1996.  Included in that material was the third respondent’s letter of the applicant dated 4 January 1996, as it was part of the relevant material requested by HRO ACT (Ms Petherbridge).  That re-publication of that letter is one of the allegedly defamatory communications by the fifth respondent.

189               The conciliation conference took place during and after February 1996.  Ms Petherbridge estimates that her contact time during the conference, either with a larger or smaller group including the applicant, the applicant separately or ATO officers separately totalled some 17 hours.  The conciliation process principally involved the third respondent and the fifth respondent on behalf of the ATO.  She reached the point where she prepared notes for a possible agreement for consideration of the applicant and the ATO (in particular the third respondent).  They each made further comments on the document.  Ms Petherbridge felt she was making progress towards overall resolution.  However resolution did not eventuate.  There is no point in identifying now the particular stumbling blocks.  On 20 May 1996, the applicant wrote to Ms Petherbridge indicating that he did not agree to the then direction of the proposed resolution.  He nominated terms for resolution, including a substantial monetary payment.  They were significantly different from the document which Ms Petherbridge was endeavouring to utilise as the foundation for a conciliated agreed outcome.  The applicant indicated that, in the absence of agreement to his terms, he requested the matter be referred to HREOC as soon as possible for hearing.  The ATO was not prepared to agree to those terms.  By letter of 30 May 1996, the First Assistant Commissioner of Corporate Services of the ATO rejected the proposal.

190               On 31 May 1996 Ms Petherbridge wrote to the applicant and to the ATO indicating that she considered the conciliation had failed and that she proposed to refer the matter to the first respondent for hearing. 

191               On 28 June 1996 she wrote to HREOC to that effect.  It was in the following terms (ultimately as changed by Ms Tyler for the reasons set out below):

‘This complaint is not amenable to conciliation.  Consequently I am referring it for enquiry by the commission.

Forwarded with this letter is a report relating to an enquiry into the complaint in accordance with Section 57 of the Sex Discrimination Act 1984.

I would also like to draw your attention to the attached letter concerning the issue of whether [X] can be an individual respondent in this matter.  I have acknowledged its receipt but informed [X]’s solicitor that your area will be handling this matter.’

That letter, together with three volumes of materials as assembled by Ms Petherbridge in the course of her investigation, was then sent to HREOC. 

192               That letter enclosed a report relating to an enquiry into the complaint in accordance with ‘s 76 of the Disability Discrimination Act’.  Ms Tyler recognised that the letter as drafted by Ms Petherbridge erroneously referred to the DD Act, and she altered it to refer (correctly) to s 57  of the SD Act.  The letter was then sent apparently under the signature of Ms Petherbridge as ‘delegate of the Sex Discrimination Commissioner’.

193               The applicant was informed of that communication.

194               Ms Petherbridge acknowledges that she did not have power to refer the matter to the first respondent for public enquiry.  Her letter is erroneous in that respect.  She accepts her power was limited to recommending to the Sex Discrimination Commissioner (or the Race Discrimination Commissioner) that a matter be referred for public enquiry.  Her power also included power to terminate the complaint, but she did not think it was appropriate to do so in this instance. 

195               I note a disagreement between the applicant and Ms Petherbridge regarding a conversation regarding the work carried out by the second respondent.  Ms Petherbridge disputes that she said to the applicant, as he claims, that the mediation by the second respondent ‘was not done properly’.  I think it unlikely that Ms Petherbridge said words to that effect.  The second respondent did not in fact embark upon a mediation.  His enquiry was to see if a mediation could usefully be undertaken.  Ms Petherbridge only had limited knowledge of that process, which she acquired in January 1996 at the applicant’s suggestion and before the conciliation.  The applicant had a far greater knowledge of what the second respondent had done.  In any event, again, that is a dispute the resolution of which for present purposes is unimportant.

196               On 24 July 1996 the matter was returned to ACT HRO for further investigation. It came under the control of Ms Tyler.  From July to December 1996 she was its Acting Director.  Her contact with the applicant, so far as relevant to the present proceedings, was essentially during her period of Acting Directorship.

197               The first respondent also agrees that Ms Petherbridge and the ACT HRO did not have the power formally to refer the matter for inquiry by the first respondent by public hearing, but that the ACT HRO had power only to recommend that the matter be referred for public hearing.  At all events, it is common ground that following 28 June 1996 the first respondent through the ACT HRO resumed its investigation of the sexual discrimination complaint.

198               Ms Tyler sought further information from the applicant to understand specifically the details of the alleged discrimination.  On 12 September 1996, Ms Tyler wrote to the applicant seeking certain additional information.  The applicant responded by letter of 27 September 1996.  Ms Tyler also had information from the solicitors for X, by letter of 19 June 1996.  The material enclosed with that letter showed that the applicant had sued X in the Small Claims Court of the ACT on 16 July 1993 for damages for psychological injury, pain and suffering caused by her harassment of him, and for failing in September 1992 to transfer her employment to another department of the ATO when she had agreed to do so.  The action was discontinued pursuant to an agreement dated 23 April 1993, by which (inter alia) the applicant and X agreed to cease all action against each other and that ‘no future action will be taken regarding the relationship between the parties from 1986 to 1993’ other than his current complaint to the first respondent against the ATO and his (then) current sex discrimination complaint of sexual harassment against X in certain other specified actions.  Ms Tyler did not consider that the agreement prevented her from continuing to investigate A’s complaint of sex harassment against X. 

199               She continued the investigation into the applicant’s complaint of sex discrimination against the ATO and of sex harassment against X.  By letter of 25 September 1996, she sought further specific information from the ATO.  The third respondent provided further information by memorandum of 27 November 1996 sent to ATO Personnel for inclusion in its response to the ACT HRO letter of 25 September 1996.  The applicant alleges that that memorandum also constituted false and misleading information, that the third respondent acted with malice and with the intention to injure the applicant by sending it, or alternatively acted recklessly by sending it, intending it to be provided to HREOC.  The ATO responded in detail on 31 January 1997.  That response was provided to the applicant on 19 February 1997.  The source of the ATO response was largely the third respondent.

200               The memorandum of the third respondent of 27 November 1996 is directly responsive to three questions raised by ACT HRO (Ms Tyler) in the letter of 25 September 1996.  It sets out each question and then the response.  The applicant did not cross-examine the third respondent to put to him the allegations in the statement of claim that the third respondent had improper motives in doing that.  The third respondent denied those allegations.

201               The fifth respondent also, on 27 November 1996, provided information through ATO Personnel area for the ATO response to the ACT HRO (Ms Tyler) request for information regarding the sexual and racial discrimination complaint.

202               In the meantime, on 12 September 1996 the ACT HRO had also requested the applicant to provide further material to it.  The applicant by letters of 25 November 1996, 4 December 1996 and 21 January 1997 renewed requests that the sex discrimination complaint be referred for public inquiry as soon as practicable.

203               He had the view that the strategy of the ATO was to delay and obfuscate the ACT HRO enquiry, ‘seemingly to hope that I die from starvation (or old age) before my case can be brought before an independent tribunal’.  Ms Tyler did not accede to that request, as she had not sufficiently progressed her investigation to a point where she could determine whether the matter should be referred for public enquiry, or whether it should be terminated.

204               Ms Tyler’s investigation was never completed.  The files were sent to the first respondent in December 1996, upon the closure of the ACT HRO.  Ms Tyler did not then provide any overview or summary or recommendations to the first respondent.  She had no role in the first respondent’s final decision to terminate the investigation into the applicant’s complaints.  The applicant was notified by undated letter from the ACT HRO in December 1996 of the closure of its office, and that the complaint would be passed to the first respondent for further consideration.

205               There is one aspect of Ms Tyler’s evidence I should further address.  The applicant claims that Ms Tyler told him that her view was that X did sexually harass the applicant.  She denies having said that.  In his evidence, the applicant explained the context of the conversation to which he referred.  In the light of his overall evidence, as well as that of Ms Tyler, I think the position is clearer.  I conclude that Ms Tyler said to the applicant words to the effect that the test (my emphasis) is whether a reasonable person would consider that X’s behaviour towards the applicant was unwelcome conduct of a sexual nature.  She may also have indicated that certain particular conduct of X described by the applicant to her may have satisfied that test.  She did not indicate, and did not intend to indicate, that she accepted that such conduct had occurred.  My impression of her was that she was cautious in the way in which she progressed her investigation.  I do not think she would have been judgmental or that she would express judgmental opinions in that process.  Consequently, I do not find that Ms Tyler did tell the applicant that she regarded X’s conduct as sexual harassment.  I accept her unchallenged evidence that she was careful to always not to be judgmental or to convey her views on the facts while she was in the course of an investigation.  Given what the applicant says was the conduct in which X engaged towards him, he might readily have applied the test described by Ms Tyler to that conduct and understandably have reached the view that the conduct amounted to sexual harassment.  However, from Ms Tyler’s perspective, I accept that she did not tell the applicant that she had the view that X’s conduct did amount to sexual harassment. 

206               I will complete my findings concerning the first respondent’s handling of the sex discrimination complaint before reverting to other matters concerning the applicant during 1996.

207               As noted above on 5 February 1997 the first respondent received from the ATO a submission concerning the applicant’s sex discrimination complaint.  It is at this point that there arises a direct dispute between the applicant and the respondents.  He contends (and pleads) that he was not then informed of the existence of that submission until after the first respondent’s decision of 2 April 1997.  The sixth respondent asserts on behalf of the first respondent that a copy of the ATO’s submission of 5 February 1997 was provided to the applicant under cover of a letter dated 19 February 1997, in response to the applicant’s request pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act) for documents held on his conciliation file.

208               It is further alleged (and denied, without further particularity) that on 26 March 1997 an officer of the first respondent provided to the first respondent a report dated 26 March 1997 which contained misleading or false information.  The applicant claims not to have been informed of that report prior to 2 April 1997.  Particulars of the allegedly misleading content of that report are given.

209               As noted, it is common ground that on 2 April 1997 the first respondent wrote to the applicant concerning the sex discrimination complaint against the ATO, X and others under the SD Act and the RD Act.  The letter said:

‘Having given careful consideration to the matters raised by your complaint I have decided not to continue to inquire into your allegations.  In accordance with the SDA and the RDA I must notify you in writing of my decision and the reasons for my decision.’

Reasons were then given.  The letter continued:

‘The RDA and the SDA provide that if you disagree with my decision you have the right to require me to refer your complaint to the President of the Commission or one of his delegates for review of this decision.  If you wish to have my decision review [sic] you must notify me in writing within 21 days of receipt of this letter.  If I do not receive such a request your file will be closed.’

The letter was signed by the Race Discrimination Commissioner as delegate of the Sex Discrimination Commissioner.

210               The applicant did not thereupon seek referral of the sex discrimination complaint to the President of the first respondent.  Instead, by letter of 5 April 1997, he pointed out two asserted mistakes in the ‘purported decision’, upon which he sought responses.  He also asked that any time limit for him to seek review of the decision should commence from the date upon which he received the responses of the first respondent.

211               The first mistake alleged was that the decision of 2 April 1997 was ultra vires, because Ms Petherbridge had on 28 June 1996 referred the sex discrimination complaint for hearing pursuant to s 57 of the SD Act.  In fact, as noted above, that was an error by Ms Petherbridge (which she acknowledged) as to the extent of her powers.  That was pointed out to the applicant by letter from the first respondent of 16 April 1997.  The second mistake alleged was a factual one as to when the applicant and X had last had sexual intercourse (the applicant said it was October 1991 whereas the letter of 2 April 1997 referred to ‘around mid 1992’, so the applicant asked what was the source of that information).

212               The first respondent’s letter of 16 April 1997 also pointed out that the 21 day period for any application to have the decision reviewed by the President of the first respondent was statutorily prescribed, and could not be extended.  The period for such a review application expired on 26 April 1997.

213               The applicant did not seek review of the decision by the President of the first respondent within that period.  On 30 April 1997, the first respondent wrote to him noting the expiry of that period, and that the first respondent’s file had been closed.

214               I return to the applicant’s work history.

215               During much of 1996, the applicant was absent from work due to illness.  In the latter part of the year, the prospect of him being fit to return to work arose.  The fourth respondent prepared a document dealing with his possible return to work dated 31 October 1996, after discussions with the union representative (who, the fourth respondent understood, spoke with the applicant’s approval) involving a short initial placement and then progressive development of longer term options.  Details of the short term placement and the working location and environment for it are set out in the document.  As the applicant elicited in cross-examination, this document was the result of the fourth respondent and the fifth respondent endeavouring to identify suitable work for the applicant.  In doing so, the fourth respondent had regard to the length of time that the applicant had been absent from work, the needs imposed by his medical condition including that he should avoid stress and not work in an ‘isolation’ area, and should be in a friendly and supportive environment, and that there should be some flexibility.  The fourth respondent was also aware of, and had regard to, general staff concerns about working with the applicant in his former DBA subsection area, but he said that he only had a general awareness of that aspect.  He did not look at whether the majority of those in the proposed work environment were female, as he was not aware of any medical advice that the applicant would be prone to emotional distress in such a work environment.  I accept, as the fourth respondent said in re-examination, that his recommendations were based upon endeavouring to achieve the best interests of the applicant.

216               The applicant then returned to work in mid December 1996.  His progress was reviewed by the fourth respondent.  On 27 May 1997 the fourth respondent prepared a report on the applicant’s progress, a copy of which was provided to the applicant.  On 4 June 1997, the applicant was suspended from duty in relation to certain alleged computer mainframe usage and a number of alleged systems violations recorded against him.  He has instituted separate proceedings challenging the validity of that suspension.

217               To complete the picture of the fourth respondent’s evidence, at the time of “downsizing and restructuring within ATO” in the latter part of 1997, the applicant was offered voluntary retrenchment or redeployment within the ATO or the service by letter of 24 October 1997.  He was told at the time that his position had been identified as excess.  At the time he was still under suspension.  He did not take up either of those options.

218               On 21 May 2001, the applicant’s employment was terminated following an investigation under the Public Service Act 1999 (Cth) in respect of his subsequent criminal conduct.

consideration:  the adjr claim

219               Various grounds are given upon which the decision of 2 April 1997 of the first respondent is sought to be quashed.  The applicant alleges that there was a breach of the rules of natural justice which occurred in connection with its making, in that he did not have an opportunity or a proper opportunity to respond to the submission from the ATO of 31 January 1997 or to the internal report of 26 March 1997.  He also claims to have been denied procedural fairness because the first respondent took an unreasonable period within which to make the decision (three years and nine months).

220               It is next claimed that procedures required by law to be observed in connection with the making of the decision were not observed.  I will refer to the three particulars of that allegation below.

221               Next it is claimed that there was no evidence or other material to justify the making of the decision, because the decision was based upon the existence of facts which did not exist (six facts were identified) and that the determination that the applicant’s sexual discrimination complaint was lacking in substance was not reasonably open on the material before the first respondent.  Again I will refer to the details of those particulars below.

222               Finally it is claimed that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.  The particulars are threefold.  It is claimed that: 

(a)        the first respondent failed to take into account two submissions made by the applicant, namely submissions made on 11 September 1995 and on 14 March 1996 in reply to submissions made by the third and fifth respondents;

(b)        secondly, the first respondent took into account an irrelevant consideration, namely that her investigation should commence with events after April 1990; and

(c)        thirdly, the first respondent took into account an irrelevant consideration, namely the decision of the AAT dated 28 June 1996 concerning the applicant’s claim for review of the decision of Comcare in relation to his claim for compensation under the SRC Act.

223               The sixth respondent accepts that the applicant is a person aggrieved by the decision.  However, its defence asserts that there is no basis to review the decision.  It further claims, by way of alternative, that the SD Act, as it was at material times, provided in Pt III Div 2 adequate provision for review of the decision by the President of the first respondent, and that the applicant was aware of and declined to adopt that review process, so that the Court should, in the exercise of its discretion, refuse the application. 

224               The relief the applicant claims against the first respondent is an order quashing its decision of 2 April 1997 or declaring it to be null and void, and prohibiting the respondents (other than the second respondent) from taking any action to enforce the decision or in relying upon the decision.  Secondly, an order is sought directing the first respondent to hold a public inquiry in relation to the sex discrimination complaint lodged by the applicant with the first respondent on 17 September 1993.  In the opening, he explained that the order for the public inquiry which he seeks concerns his complaint of sexual harassment as well as his complaints of sexual discrimination and of disability discrimination. 

225               I shall address the applicant’s claims in sequence.

(i)         Procedural fairness

226               It is clear that the ATO made a detailed submission to the first respondent by document dated 31 January 1997 and received (as stamped) on 5 February 1997.  I also find that that ATO submission was provided to the applicant by the first respondent with a letter of 19 February 1997.  That letter to the applicant was apparently in response to a request under the FOI Act made on 2 December 1996.  The ATO submission is listed as the first item of the documents provided.  The material was received by the applicant, as evidenced by a facsimile from him dated 25 February 1997 addressing the content of another document disclosed at the same time.  The applicant in his affidavit of 8 November 1997 acknowledges receipt of that ATO submission, and that he sent a document in relation to that submission in February 1997.  Whether the applicant would have been provided with the ATO submission of 31 January 1997 but for his request under the FOI Act was not explored in evidence.  It does not matter.  He received the submission, and he had the opportunity to, and did, address it.

227               The internal memorandum of 26 March 1997 was not provided by the first respondent to the applicant for comment.  It was a ‘file review’ with recommendations provided to Ms Zita Antonios, the Race Discrimination Commissioner (the Commissioner) and at the time also the delegate of the Sex Discrimination Commission.  Ms Antonios made the decision of 2 April 1997 not to inquire into the sex discrimination complaint.

228               The sixth respondent accepted that, in making its decision on the sex discrimination complaint, the first respondent was obliged to accord the applicant procedural fairness.  Relevantly, for present purposes, that obligation included giving to the applicant notice of those potentially adverse matters upon which its decision might be based and the opportunity to make submissions and to adduce material with respect to those matters:  see Kioa v West (1985) 159 CLR 550 (Kioa); Re Pergamon Press Ltd [1971] Ch 388.  There was really no dispute between the applicant and the sixth respondent as to those principles.  The issue was whether, applying those principles, the internal memorandum of 26 March 1997 in the circumstances enlivened some practical obligation that it be provided to the applicant for his consideration and submissions.

229               I do not consider that the internal memorandum of 26 March 1997 obliged the first respondent to provide it to the applicant for his response.  It was not a document which contained, or purported to contain, material which the applicant was not previously aware of or which he had not previously had the chance to comment on.  The applicant had had the opportunity to present to the first respondent what material and submissions he wished to present.  He had been notified of material the first respondent had received from those who were the subject of the sex discrimination complaint, or whose role was seen as relevant to its consideration.  He had had the opportunity to respond to that material.  The internal memorandum comprised the sixth respondent’s assimilation of that material for submission to the decision-maker and some recommendations prepared for submission to the decision-maker.  It therefore represents a step in the final decision-making processes of the first respondent and its provisional thinking after according the applicant procedural fairness.  The first respondent was not obliged by the principles of procedural fairness to provide to the applicant a further opportunity to make submissions at that point:  F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369.  It was required to provide a fair opportunity to the applicant to be heard in the way I have described:  see Kioa at 612-613 and 628-629.

230               The applicant further claimed a lack of procedural fairness on the part of the first respondent by reason of its delay.  The sex discrimination complaint was made on 17 September 1993, and the first respondent’s disposition of it was only on 2 April 1997.  For the period from about 31 May 2004 until 19 April 1995 the first respondent’s investigation of the complaint was inactive at the applicant’s request, in circumstances set out above.  Otherwise, as my general findings indicate, its investigation proceeded slowly but with intermittent bursts of more intense activity.  The evidence does not show all steps taken by the first respondent, or more accurately by the ACT HRO until the end of 1996.  Its full file is not in evidence.  However, for the first several months, things moved slowly.  Then the delay at the applicant’s request occurred.  The investigation then involved getting further material from the applicant, getting responsive material from the ATO (provided on 24 August 1995), getting the applicant’s response to that material, requesting further material from the ATO, including through the third respondent, and from January 1996 extending those processes to the complaint concerning X.  The detailed nature of the material presented to the first respondent required careful response, and it is apparent that the responses, whether from the applicant or the officers of the ATO, took a little time. 

231               In the early part of 1996, the unsuccessful conciliation process was also undertaken.

232               Apart from the initial period following the complaint, there was no lengthy period of inactivity on the part of the first respondent.  The rate of progress of its investigation, whilst acknowledged to be slow, was explained by Ms Petherbridge and by Ms Tyler.  Neither was challenged in cross-examination on that evidence.  Along the way, the applicant did not remain in the dark.  He was informed from time to time of what the ACT HRO was doing, and was given information it received for comment.  The allegations being investigated were complex and involved a considerable time span (as my general findings indicate).

233               Section 7 of the ADJR Act provides a vehicle for a person frustrated by delay in the making of an administrative decision to apply to the Court for relief.  That is not relied upon by the applicant.  The decision of 2 April 1997 was made before any such application.  Rather, he contends the delay itself constitutes a denial of procedural fairness.  In NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77, Gleeson CJ at [4] pointed out that delay may not of itself provide a principled reason for error on the part of an administrative decision maker such as the first respondent.  It may demonstrate, or tend to demonstrate, error as part of oppressive conduct by another party, or may have contributed to some other error or may make a decision unsafe.

234               In this matter, I have found that the lengthy processes of the first respondent did not deny the applicant the opportunity to be heard.  The investigation of the first respondent was an ongoing one.  The applicant was involved in it continually, that is from time to time as its evolution required.  He was not uninformed of its progress or of its processes.  Whilst the processes of investigation could no doubt have been expedited, there is nothing on the material which satisfies me that the first respondent was unable as a result of the period of time it took to make its decision to fulfil its function properly, or to accord the applicant procedural fairness in doing so.

(2)        Failure to comply with procedures imposed by law

235               The applicant firstly contends that the first respondent was obliged to, and failed to, hold a public inquiry into the sex discrimination complaint after forming the opinion on 28 June 1996 that the sex discrimination complaint was not amenable to conciliation.

236               There is no doubt that by 31 May 1996 Ms Petherbridge had formed the view that her attempt to conciliate the sex discrimination complaint had been unsuccessful.  She so informed the applicant and the ATO by letter of that date.

237               The applicant relies on s 57 of the SD Act as then imposing on the first respondent the obligation to hold a public inquiry into the sex discrimination complaint.  In fact, it did not then do so, but (as noted above) it continued to investigate the complaint.  The applicant describes it as a ‘re-investigation’.  He alternatively contends that, in the circumstances, a public inquiry was dictated by the SD Act by his then persistent requests to the first respondent to conduct a public inquiry.

238               The short answer to that contention is that s 57 of the SD Act as then in force did not operate on the views of Ms Petherbridge so as then to oblige the first respondent to conduct a public inquiry.  That is so, whether or not the applicant requested such an inquiry.

239               Section 57(1) of the SD Act provided at the relevant time:

‘(1)      Where the Commissioner:

(a)          is of the opinion that a matter cannot be settled by conciliation;

(b)          has endeavoured to settle a matter by conciliation but has not been successful; or

(c)           is of the opinion that the nature of a matter is such that it should be referred to the Commission;

the Commissioner shall refer the matter to the Commission together with a report relating to any inquiries made by the Commissioner into the matter.’

It is important to note that it is the opinion of ‘the Commissioner’ which started the process.  The Commissioner is the Sex Discrimination Commissioner:  s 96 of the SD Act.  The Commissioner is not the same as the entity referred to in the SD Act as ‘the Commission’, namely the first respondent:  s 4 of the SD Act.

240               The process of investigation then prescribed was set out in s 52 of the SD Act.  Section 52(1) provided for the first respondent to have received the sex discrimination complaint, and if appropriate for the first respondent to then refer the complaint to the Commissioner.  The Commissioner is then required, subject to s 52(2), to inquire into the allegedly unlawful act and endeavour by conciliation to effect a settlement of the matter to which the act relates.

241               Section 52(2) provided:

‘(2)      The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if:

(a)               the Commissioner is satisfied that the act is not unlawful by reason of a provision of Pt II;

(b)               the Commissioner is of the opinion that the person aggrieved by the act does not desire, or none of the persons aggrieved by the act desires, that the inquiry be made or continued;

(c)               in a case where a complaint has been made to the Commission in relation to the act, a period of more than 12 months has elapsed since the act was done; or

(d)               in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.’

242               As it is relevant to another submission of the sixth respondent, I note also that when the Commissioner has decided not to inquire or to continue to inquire into an act, notice to the complainant must be given and certain review rights are prescribed.  Relevantly, those rights are exercised by the President of the first respondent.  Section 52(3), (4), (5A) and (6) provided:

‘(3)      Where the Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner shall give notice in writing to the complainant or each of the complainants of that decision, of the reasons for that decision and of the rights of the complainant or each of the complainants under subsection (4).

…

(4)       Where the Commissioner has given a complainant a notice under subsection (3) relating to a decision, the complainant may, within 21 days after receipt of the notice, by notice in writing served on the Commissioner:

(a)               if paragraph (2)(a) applies – require the Commissioner to refer the complaint to the Commission; or

(b)               in any other case – require the Commissioner to refer the decision to the President.

…

(5A)     If the Commissioner receives a notice under paragraph (4)(b), the Commissioner must refer the decision to the President together with a report about the decision.

…

(6)       The Commissioner may, for the purposes of this Act, obtain information from such persons, and make such inquiries, as the Commissioner thinks fit.’ 

243               The President of the first respondent was then obliged to review the decision of the Commissioner.

244               In this matter, as Ms Petherbridge acknowledged, neither the ACT HRO nor she personally held a delegation from the Commission to perform the Commissioner’s functions under s 52 of the SD Act.  Upon the evidence, the Commissioner herself did not form the opinion to which s 57(1)(a) or (c) referred, and did not herself unsuccessfully attempt to settle the matter of conciliation.  To the extent that was done, it was done by Ms Petherbridge but not as an authorised delegate of the Commissioner.  Consequently, the obligation on the Commissioner to refer the sex discrimination complaint to the first respondent did not arise, and the consequential obligation on the first respondent to hold an inquiry into the sex discrimination complaint under s 59 of the SD Act also did not arise, notwithstanding Ms Petherbridge’s views at the end of June 1996.

245               As s 57(1) was not enlivened, in my view the powers under s 52 of the SD Act remained available to the Commissioner.  Those powers included the power to decide not to continue to inquire into the applicant’s allegations for the reasons given (the applicant’s attack upon the validity of those reasons is addressed below).

246               In my judgment, the claim of the applicant that the decision of the Commissioner conveyed by the letter of 2 April 1997 was not authorised because the first respondent by the end of June 1996 was obliged to conduct an inquiry into the sex discrimination complaint is not made out.

(3)        Absence of evidence or other material to justify the making of the decision

247               This ground of attack is based upon s 5(1)(h) of the ADJR Act.  Section 5(1)(h) is explained by s 5(3).  It provides:

‘(3)      The ground specified in paragraph (1)(h) shall not be taken to be made out unless –

(a)               the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.’

In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358 Mason CJ said:

‘The effect of s 5(3) is to limit severely the area of operation of the ground of review in s 5(1)(h).  If we put to one side the situation to which par(b) is directed (proof of the non-existence of a fact critical to the making of the decision), the opening part of par(a) restricts the “no evidence”ground to decisions in respect of which the decision-maker was required by law to reach that decision only if a particular matter was established.  In such a case the ground of review is that there was “no evidence or other material … from which he could reasonably be satisfied that the matter was established”.’

248               The operation of s 5(3)(b) was explained by Gleeson CJ in Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 (Rajamanikkam).  His Honour pointed out that s 5(3)(b) refers to the fact or facts upon which the decision was based.  He said at 232-233:

‘The requirement is to “base [a] decision on evidence”; a requirement as to the way the decision-maker is to go about the task of decision-making.  The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction.  The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that an administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts.’

 

That approach is, in my view, consistent with the need for the particular fact of which there was no evidence to have been a fact critical to the making of the decision, as explained by Black CJ in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-222.

249               The amended statement of claim identifies six facts which the applicant contends are facts upon which the decision of 2 April 1997 was based and which did not exist.  They are as follows:

‘(a)      that the ATO spent considerable time in trying to resolve the Applicant’s complaint;

(a)               that the Applicant was having a sexual relationship with [X] until mid 1992;

(b)               that the Applicant had stated that he had not had sexual intercourse with [X] after March 1992;

(c)               that the Applicant had stated that he engaged in sexual acts with [X] until mid 1992;

(d)               that by January 1993 the Applicant had had a relationship with [X] for nearly 10 years;

(e)               that [X] had made a complaint against the Applicant alleging conduct by the Applicant that falls under section 28 of the Sex Discrimination Act 1984.’

250               In my view, the decision of 2 April 1997 was not based upon the existence of all or any of those facts, in the sense explained above.  They are each facts to which the Commissioner referred in the reasons for that decision, but none of them are critical links in a chain of reasoning so that, absent that fact, the decision could not have been made.  Rather, they are each pieces of information which operated together to lead the Commissioner to her conclusion.  It is not possible to be satisfied that, absent one or more or all of them (in the way the applicant contends), the decision could not have been reached.  It is necessary to add the parenthesised words because each of the particular facts attributed to the Commissioner, and which is said not to exist in its explicit terms, nevertheless existed in the more general proposition underlying the specified fact or facts is one which did exist.  That is apparent on the applicant’s own evidence.  For example, it may be strictly inaccurate to say that the applicant ‘had stated that he had not had sexual intercourse with [X] after March 1992’, but it was not inaccurate to note that the applicant said he had not had sexual intercourse with X after a certain point relevant to the sex discrimination complaint.

251               The reasons for the decision of the Commissioner of 2 April 1997 are in several steps.  First, she decided not to inquire into the events concerning the applicant and X prior to April 1990.  No particular complaint is made about that.  Second, as the Race Discrimination Commissioner under the RD Act, she decided that the complaint of race discrimination was lacking in substance.  Again, no particular complaint is made about that.  Her consideration of the sex discrimination complaint is broken into three sections:  sexual harassment, sex discrimination, and victimisation.  Five of the facts which, it is claimed, did not exist are referred to in the discussion of sexual harassment and the sixth (that the ATO had spent considerable time in trying to resolve the applicant’s complaint) is referred to in the discussion of sex discrimination.

252               The sexual harassment part of her reasons addresses separately the periods before and after the agreement of 30 August 1992 between the applicant and X and their respective spouses.  The Commissioner accepted that up to 30 August 1992 the relationship between the applicant and X may have been ‘tumultuous’, but thought that it:

‘ … would not be reasonable to suggest that conflict within the relationship would be unwelcome for the purpose of invoking the SD [Act] whilst other parts of the relationship were not unwelcome.’

That part of the reasons contained the three allegedly unsupported facts referred to above as (b), (c) and (d).  In fact, there is no finding of fact about any of those matters.

253               The finding (if it is properly so categorised) is a finding that in the material provided to the first respondent the applicant had variously stated those three things.  The fact that the applicant did or did not precisely state those three things is not itself a necessary link in a chain of reasoning leading to the ultimate decision.  It is a recording of information.  The real finding on this aspect was that up until August 1992 from time to time the applicant and X were in a ‘tumultuous’ relationship which for some time or times was consensual and for others was not with the applicant’s acquiescence.  That is in fact consistent with the material from the applicant also before the Court, although he also said that in a real sense his will was overborne by X during periods in and after 1990 when he did acquiesce in the relationship.  The finding of the Commissioner to that point is, therefore, not one which attracts the operation of s 5(1)(h) at all.

254               If, however, the three individual facts as attributed to the applicant which are said not to exist are addressed, there is evidence before the Court upon which generally they could be arrived at.  They are in documents annexed to the applicant’s affidavits, or in the affidavits themselves.  In a letter dated 8 February 1996 to the ACT HRO, the applicant referred to having had sexual intercourse with X on several occasions up to October 1991.  In a letter to X of 26 April 1993, he referred to an occasion of sexual intercourse in March 1992, also referred to in his affidavit of 22 April 1997.  There does not appear to be evidence of a statement of the applicant of any sexual relationship with X after March 1992.  However, as I have indicated above, the fact that the applicant did or did not say that  a sexual relationship had extended beyond March 1992 to mid 1992 is not a critical step in the Commissioner’s reasoning.  It is that there had been an ongoing relationship for a considerable period, during periods of which the applicant apparently acquiesced and during other periods of which he was averse to the relationship.

255               The conduct of X for the period from 30 August 1992 was found by the Commissioner to be conduct which, in all the circumstances, a reasonable person would not have anticipated as being offensive, humiliating or intimidatory.  In that part of the reasons appear the particular facts said not to exist as (e) and (f) above.  That the relationship was described as a ‘nearly’ ten years old is not a fact which is shown not to exist.  It was a lengthy relationship.  That is the gist of the observation.  It may in fact have lasted only six or seven years (from about 1986).  It was the fact of a lengthy relationship which was the circumstance (or one of the circumstances) in the reasoning used to inform the conclusion.  The other ‘fact’ complained of is that X had made a complaint of similar harassment against the applicant, because ‘most of the conduct complained of falls under s 28A’ of the SD Act.  On 10 May 1993, as noted above, X lodged a grievance complaint against the applicant.  Section 28A as then in force defined ‘sexual harassment’.  That part of the reasons reveals that that is no more than an observation categorising the mutual complaints as concerning unwelcome sexual advances or other unwelcome conduct of a sexual nature.  But referring to X’s complaint in that way does not involve any crucial factual finding in the Commissioner’s conclusion.  The categorisation of the conduct apparently referred to by X is not a finding of fact.  It was in a sense an incidental observation.  The Commissioner’s reasoning involved assessing objectively the character of the conduct the applicant complained of against the provisions of the SD Act and in all the circumstances.  Her decision is not attacked as involving any misapplication of the law.  More broadly, it is clear in my view that the categorisation by the Commissioner of the nature of the conduct of which X complained does not support the proposition of the applicant that there was no evidence or other material to justify the making of the decision.

256               The above consideration of this part of the applicant’s claim indicates that the Commissioner, to this point in her reasons, was addressing whether X had sexually harassed the applicant.  In the amended statement of claim, the ‘sex complaint’ (in respect of which I have adopted the expression the ‘sex discrimination complaint’ in these reasons for judgment’) is identified as the complaint of the applicant of 17 September 1993 concerning conduct by the third, fifth and sixth respondents.  It is the decision of the first respondent through the Commissioner made on 2 April 1997 not to inquire into that complaint of which the applicant complains.  The applicant’s contentions therefore focused on matters concerning the third, fifth and sixth respondents.  They did not focus on X except as relevant to the sex discrimination complaint.  The conduct of the third, fifth and sixth respondents the subject of the applicant’s allegations concerning their handling of the ‘sex complaint’ (as defined in the amended statement of claim) received only brief consideration by the Commissioner to that point.  Her findings in that part of her reasons do not include any particular facts in respect of which there is said to be no evidence, other than the one referred to in the succeeding paragraphs, so as to enliven s 5(1)(h) and s 5(3) of the ADJR Act in relation to the third, fifth and sixth respondents.  To the extent, however, that the earlier reasoning and findings of the Commissioner may feed into her consideration of the conduct of the third, fifth and sixth respondents, I have reached the views expressed above.

257               The second section of the Commissioner’s reasons addresses the claim that the applicant was treated by the ATO (including the third and fifth respondents) less favourably than a woman would have been treated in the same or not materially different circumstances.

258               In that section appears the observation that the ‘ATO spent considerable time in trying to resolve the applicant’s complaints’.  Even if that observation is a particular fact referred to in s 5(3)(b) of the ADJR Act, it is not shown not to exist.  The complaint by the applicant of 6 September 1993 alleging sexual harassment by X was investigated and addressed by Mr Butterfield on 29 October 1993.  The review sought by the applicant through the MPRA was also investigated and addressed by Mr White.  That by itself is sufficient to dispose of that complaint.  Again, however, it is desirable to put the ‘particular fact’ into context.  The note about how long the ATO had spent investigating the complaint is not a crucial step in the line of reasoning of the Commissioner leading to the decision of 2 April 1997.  The decision does not depend upon that observation.  It depends upon the analysis of the quality of the treatment the applicant received.  In context, too, I think the observation is a more generic one.  As the applicant himself said, his objective was to be re-instated to the DBA subsection.  That would, to his mind, be an acknowledgment that he was the victim of harassment by X.  He also said to the Court that, at least in late 1992 and during much of 1993, he accepted that the third respondent and the fifth respondent could not have resolved his complaint (to the extent it was identified in his letter of 20 November 1992) concerning X’s behaviour towards him.  The reference to the ATO’s attempts to resolve the complaint of the applicant, in that context, includes the efforts of the third and fifth respondents to address the return of the applicant to the DBA subsection, about which I have made findings above.  Clearly, in that context, the ATO did spend considerable time in trying to resolve the applicant’s complaint.

259               That leads to a further reason to reject this contention.  In Rajamanikkam, Gleeson CJ at 234 said that s 5(3)(b) of the ADJR Act does not carry with it the implication that, if it is shown that a particular fact upon which a decision is based did not exist, then the ground of review under s 5(1)(h) shall be taken to have been made out.  It is necessary to step back and to consider whether there was no evidence or other material to justify the making of the decision.  Hence, in that case, although the assessment of the credibility of the appellant was based upon a number of facts of which two were shown not to exist, the decision had not been based on those facts because there were other facts to justify the conclusion on credibility, and there were other plausible reasons for reaching the decision independently of the assessment of that appellant’s credibility.

260               In this matter, I do not consider it has been shown that the decision of 2 April 1997 was made in circumstances where there was no evidence or other material to justify the making of the decision, even assuming (contrary to the conclusions I have already reached) that the decision was:

(i)                  based upon the particular and quite specific facts identified by the applicant, and

(ii)                that those particular facts did not exist, taking those particular facts either singly or collectively.

261               The reason for that conclusion is simply that there was ample evidence before the first respondent that the third, fifth and sixth respondent did not discriminate against the applicant by reason of his sex, and did not victimise him because he was perceived as having made a complaint of sexual harassment by X.  That evidence is the material provided by the sixth respondent to the first respondent in response to its inquiries in relation to the sex discrimination complaint, including the material provided by the third and fifth respondents through the sixth respondent.

262               It is unclear how the applicant develops the alternative contention under s 5(1)(h) of an ADJR Act, namely that the Commissioner’s decision was ‘not reasonably open on the material’ before her.  It may be a reference to s 5(3)(a).  If so, it is not made out.  There is no particular matter identified by s 52 of the SD Act necessary to be established before the decision concerning the third, fifth and sixth applicants could have been reached (at least not as indicated by the applicant) other than the conclusion itself.  The conclusion that the complaint was lacking in substance is not shown to be one upon which the Commissioner on the material before her could not reasonably have made, even if one ignores the first element referred to by s 5(3)(a) of the ADJR Act.

 

(3)        The making of the decision was an improper exercise of power

263               This ground of review invokes s 5(1)(e) and s 5(2)(a) and (b) of the ADJR Act.

264               The relevant material allegedly not taken into account is the applicant’s submissions of 11 September 1995 and 14 March 1996 in reply to those of the third and fifth respondents.  There are two reasons why this contention must fail.  The first is that s 5(1)(e) and s 5(2)(b) together operate only in respect of considerations which the Commissioner was bound by the SD Act to take into account:  see e.g. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39.  The contention under s 5(1)(e) is distinct from the natural justice ground of review discussed above.  The submissions referred to themselves do not identify any particular matter which the applicant contends that the Commissioner should have taken into account, but did not take into account.  The second is that in fact the applicant has not identified any particular matter which the Commissioner did not take into account (whether ‘relevant’ in the way described by the cases referred to or otherwise) which he contends should have been taken into account.  His complaint on this topic, in my view, is in reality no more than that the Commissioner did not reach the conclusion which he contends she ought to have reached.

265               If the contention is (despite the clear reference to s 5(1)(e) of the ADJR Act) that the applicant was not accorded natural justice because his submissions were not ‘heard’, when he was entitled to have then considered, the contention fails because it is not shown that the Commissioner did not refer to them or have regard to their contents.  The applicant has not identified any feature of them which is significantly different from the earlier materials before the Commissioner so that one might expect the submission to attract particular reference in the reasons.  There is therefore no reason to infer that they were not considered.  The reasons refer only briefly to much of the material before the Commissioner, including that of the third, fifth and sixth respondents.  In addition, the internal memorandum of 26 March 1997 refers expressly to a letter from the applicant to the first respondent which (from its description in that document) I conclude is a reference to the submission of 11 September 1995.

266               The allegedly irrelevant considerations taken into account are that the ‘investigation should commence with events after April 1990’, and the decision of the AAT of 28 June 1996 on the applicant’s application for compensation under the SRC Act.  There is no real foundation for these claims to be made out.  The Commissioner explained why she did not commence her consideration of matters until those after X commenced her employment with the ATO.  She was empowered by s 52(2)(c) of the SD Act to decline to inquire into an act if the complaint was made more than 12 months after the act.  Moreover, for present purposes, the conduct of X towards the applicant prior to April 1990, is of only marginal significance as his ‘sex complaint’ concerns the conduct of the third, fifth and sixth respondents, and their awareness of any relationship between the applicant and X, or of any alleged improper conduct of X towards the applicant, arose only (as I have found) after 30 August 1992.  Assuming in the applicant’s favour that the AAT decision of 28 June 1996 was as a matter of law something which the Commissioner was not entitled to have regard to, the Commissioner’s reasons for the decision of 2 April 1997 do not refer to it.  There is no basis for finding that she did so.

(5)        Section 52(4) of the SD Act

267               The third, fifth and sixth respondents contended that, even if reviewable error on the part of the Commissioner were made out in respect of the decision of 2 April 1997, the Court should decline relief in its discretion.  That is because relief under the ADJR Act is discretionary where adequate provision is made under another enactment for review of the decision complained of:  s 10(2)(b)(ii) of the ADJR Act.

268               The SD Act does provide for review of the decision of the Commissioner under s 52(2)(c) and (d) by the President of the first respondent:  s 52(5A) and s 52A(2).  The applicant was notified of that right in the reasons for decision of 2 April 1997, as required by s 52(3).  He had 21 days after notification of the decision to exercise that right:  s 52(4)(b).  Had he exercised that right, the decision of the Commissioner had to be referred to the President for review.  Under s 52A(2)(b), the President then had either to confirm the Commissioner’s decision, or to continue to inquire into the conduct.  The result would then be that, at some point, the Commissioner under s 52 would again decide not to inquire into the conduct (subject to further review by the President) or would refer the matter to the first respondent under s 57 for its inquiry.

269               The applicant chose not to avail himself of that option.  Instead, as noted above, he sought to join issue with certain matters in the reasons of the Commissioner of 2 April 1997.  The response of 16 April 1997 reminded him of the right of review, and the need to exercise it within the specified time.

270               In those circumstances, I would exercise my discretion to decline to grant relief to the applicant in respect of the ADJR claim, even if (contrary to my conclusion) some ground for relief under the ADJR Act were made out.  I also have regard to the following further matters.  The HREOC Act was amended in 1999, so that it can now only conciliate and if complaints of discrimination, conciliation is unsuccessful it must terminate its investigation.  The SD Act was also amended in a complementary way at the time.  There is also no power now for the first respondent to conduct the form of inquiry which the applicant sought in 1997.  In fact, also, there had been, by April 1997, an extensive conciliation process during the first half of 1996 conducted by Ms Petherbridge; it had been unsuccessful.  The elapse of time between April 1997 and those amendments was not due to any delaying conduct of any of the respondents in the conduct of these proceedings.  Further, as the applicant accepts, the prospects of him returning to the ATO, and in particular to the DBA subsection, do not exist through subsequent conduct on his part. 

CONSIDERATION:  THE MISFEASANCE IN PUBLIC OFFICE claim

271               The misfeasance in public office claim is founded upon various communications by the third to fifth respondents between September 1993 and June 1997.  There is no dispute about the information which was published. 

272               According to the pleadings, the third respondent published the following documents:

‘i.         Statement in or about March 1994 to an officer of the Sixth Respondent

ii.         Statement on or about 28/11/94 to the Second Respondent.

iii.        Statement on or about 27.2.95 to an officer of the Sixth Respondent.

iv         Letter dated 18/9/95 to an officer of the Sixth Respondent.

v.         Letter dated 4/1/96 to an officer of the Sixth Respondent.

vi         Submission on or about 23/1/96 to the First Respondent.

vii        Letters on or about 24/1/96 to the Second Respondent.

viii       Submission on or about 4/7/96 to an officer of the Sixth Respondent.

ix.        Letter dated 27/11/96 to an officer of the Sixth Respondent.’

It is then alleged that the fourth respondent published a minute dated 24 April 1996 to an officer of the sixth respondent, and that the fifth respondent published a statement on about 9 September 1993 to an officer of the sixth respondent, and a submission on or about 18 January 1996 to the first respondent. 

273               Each of the third, fourth and fifth respondents acknowledges that they intended that the first, second and sixth respondents would rely upon such information as they conveyed in connection with their dealings with the applicant.

274               The applicant asserts that the effect of the information published by those respondents was that they had not discriminated against him on any grounds or sex, race or disability and had not subjected him to any detriment on the ground that he had made complaints under the SD Act, the RD Act or the DD Act.  He further asserts that the information provided by those respondents sought in that material to justify their decision to remove the applicant from the DBA subsection of the ATO, and to give a commitment to X allowing her to veto the applicant’s return to the DBA subsection, and further that the material conveyed that the applicant should not be permitted to return to the DBA subsection because other staff members in that area were afraid of him and were unable to work with him or did not want him back. 

275               The respondents have not specifically denied that their communications generally conveyed that sort of information.  For reasons appearing below, it is not necessary to refer in detail to their responses concerning the particular communications.  They deny that, in conveying that information, they acted with malice and intention to injure the applicant, or that they were reckless as to whether or not he would suffer injury.  The applicant claims that the first respondent relied upon that information to decide not to inquire further into the applicant’s sex discrimination complaint by its decision of 2 April 1997, and that the sixth respondent relied upon the information so as not to permit the applicant to return to his employment in the DBA subsection area.  He claims as a result he suffered injury to his reputation, and other losses sounding in damages.  The respondents deny that the first respondent relied upon the information, or that the sixth respondent relied upon the information, so that the applicant suffered loss and damage. 

276               The tort of misfeasance in public office is an intentional tort.  Hence, it is necessary for the applicant to show that the third, fourth and fifth respondents or one or other of them as a public officer engaged in conduct in purported discharge or fulfilment of that public office which was invalid or unauthorised and which was done intending to injure the applicant or knowingly in excess of power (although it may be sufficient to show that conduct was done recklessly to the possibility that it was beyond power):  see Sanders v Snell (1998) 196 CLR 329 at 346-350; Northern Territory v Mengel (1995) 185 CLR 307 at 345, 370.

277               In my view, the claim must fail for the simple reason that I am not persuaded that any of the third, fourth or fifth respondents, in undertaking the communications alleged against them, engaged in conduct which was invalid or unauthorised.  Nor am I persuaded that they or any of them intended to injure the applicant by the communications, or acted recklessly to the possibility that their communications or any of them were beyond power.  That conclusion reflects my overall impression of the credibility of each of those respondents.  As I have found, their motivation was to act in the best interests of both the applicant and X as well as the workplace generally when first confronted with the problem of X’s desire to return to work in late 1992 in the DBA subsection, and thereafter their motivation remained consistently to act in the proper interests of the applicant whilst properly responding to inquiries of the sixth respondent concerning the applicant’s sex discrimination complaint, his dealings with Comcare, and his continuing desire to return to the DBA subsection.  At no time did their communications have the objective of damaging the applicant.  At no time were they made recklessly indifferent to the applicant’s interests.  The communications were always couched in conservative language, and addressing matters which were required to be addressed.  They were not unsolicited communications.  Each had a purpose which the circumstances disclose.  Each was made in the routine of the duties of the relevant respondent, and did not involve any invalid or unauthorised conduct.

278               It is therefore unnecessary to address the other elements of the cause of action.  I should add, however, that I consider there is considerable force in the further contention of the third to fifth respondents that the cause of action is also not made out because the conduct complained of did not involve the exercise of public office in relation to a member of the public, but involved them each performing internal management functions within the ATO:  see e.g. Pemberton v Attorney-General [1978] Tas SR 1 at 14; Tampion v Anderson [1973] VR 715 at 720.  It is not necessary to decide that matter.

279               In my judgment the misfeasance in public office claim must fail.

consideration:  The defamation CLAIM

280               The defamation claim is against the second to fifth respondents. 

281               In my judgment the defamation claim must fail.  It must do so for a combination of reasons.  To explain that conclusion, it is necessary to refer briefly to some general principles, and then to address the individual communications said to be defamatory.

282               The publication of the allegedly defamatory material all occurred in the Australian Capital Territory.  Hence, the common law as modified by the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW) applies:  see Seat of Government Acceptance Act 1909 (Cth); New South Wales Acts Application Act 1984 (ACT).

283               There is no dispute about a number of matters.

284               It is common ground that by November 1994 the ATO had engaged EASACT to provide services in connection with its ‘Employee Assistance Program’.  On 28 November 1994 the third respondent requested the second respondent, as agent for EASACT, to provide services in relation to the desire of the applicant to be returned to the DBA subsection, and the difficulties in returning him to the DBA subsection. 

285               In the course of responding to that request, various communications took place from the second respondent to the third respondent, including:

·               letter dated 17 February 1995 (the first publication)

·               letter dated 11 May 1995 (the second publication)

·               letter dated 5 December 1995 (the third publication)

On 23 January 1996 the third respondent republished that material to the first respondent.

286               On 24 January 1996 the third respondent published to the second respondent a copy of a letter dated 4 January 1996 from the third respondent to the applicant (the fourth publication).  The fourth publication was also provided by the fifth respondent to the first respondent by a handwritten memorandum under the heading ‘Documents provided by Geoff Seymour’ dated 18 January 1996.  The first to fourth publications were also republished by the third respondent to the ATO by memorandum dated 4 July 1996, addressed to a Mr Viney of the ATO.

287               On 24 April 1996, the fourth respondent published to an industrial officer of the Commonwealth Public Sector Union and to the ATO (Mr Viney) a memorandum of that date (the fifth publication).

288               It is axiomatic that the allegedly defamatory publications must be read in their context.  The context has been described in the findings set out above.  In their context, they will be defamatory of the applicant if they (or any of them) tend, in the minds of the ordinary reader, to injure his reputation:  see e.g. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 ff; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301, 304 (Harrison).

289               Even if the publications or some of them are defamatory, each is said to have been made on an occasion of qualified privilege.  A publication will have been made on an occasion of qualified privilege if it was made without malice, and was made by a person in discharge of some private or public duty (whether legal social or moral) and for the purpose for which the privilege is conferred:  Guise v Kouvelis (1947) 74 CLR 102 at 117; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330.  Relevantly, here, the privilege will arise if the publications were made by a person under a duty to make the publication in question to a person who either has a duty to receive it or an interest in receiving it:  Howe & McColough v Lees (1910) 11 CLR 361 at 369; Musgrave v Commonwealth (1937) 57 CLR 514 at 548.

290               The third, fourth and fifth respondents in their defence claim also that the republications by the third respondent to the ATO (Mr Viney) of material on 24 April 1996 and 4 July 1996 do not constitute publications in law as they were between employees of the ATO, ‘and there is no liability for publication in such circumstances’.

291               The applicant alleges that the publications meant and were understood to mean that he was managerially inept, incompetent, a disruptive influence within the workplace, a troublemaker, and potentially violent.  That is in issue.  He also alleges that the publication of the defamatory material led to him being refused permission to return to the DBA subsection area or any suitable employment, and injured his reputation and caused him other losses.  He seeks damages, including aggravated and exemplary damages.  The fact that the publications may have caused him loss in the way he alleges is expressly put in issue in the defences.  The second respondent disputes, both as a matter of fact and as a matter of law, that the first, second and third publications can or do carry the defamatory implications pleaded.  The third, fourth and fifth respondents contend that the words conveyed that staff of the ATO thought the applicant was a poor manager, that staff found the applicant difficult to work with and were uneasy about doing so, that staff were concerned that the applicant had potential for physical aggression, and that management were concerned that the return of the applicant to the workplace would be potentially destructive and not in the general interests of either the staff or the section generally.  They further allege that, if the words published were defamatory as alleged, they were true in substance and in fact, and it was for the public benefit that the matters set out should be published in the way they were.

292               The respondents also claim that the publications were made on an occasion of qualified privilege as the publications were made for the information of the applicant’s employer the ATO, that the second respondent (pursuant to the ATO engagement of EASACT) had a legal, social and moral duty to publish the material complained of to the recipients and the recipients had a reciprocal interest in receiving the publications, and that officers of the ATO, namely the third to fifth respondents, as employees of the ATO had the responsibility of dealing with personnel problems, staff concerns and work conditions and productivity within the ATO, and were also entitled to protection under the HREOC Act. 

293               Each of the first, second and third publications in its context is clearly a report of the views of other persons in the Data Services Section (or the DBA subsection) about the applicant.  They are expressed in those terms.  They do not convey, and could not reasonably be understood as conveying, that the views about the applicant are those of the second respondent.  Moreover, the circumstances in which those three publications came to be made (namely the engagement of the second respondent by the third respondent, first to assess the prospects of a mediated resolution, and later to endeavour to have those in the workplace and the applicant understand each others’ perspectives) fortifies that conclusion.  Indeed, the first publication expressly says that it makes no ‘assessment of the rights and wrongs of the situation’.  The second publication is also made in that context, as is the third publication.  The process of eliciting and identifying the staff concerns was (in part) so that the applicant could be aware of them, and could address them.

294               Read in context, the particular passages in the first, second and third publications of which the applicant complains all have that neutral character.  They do not, and in my view, could not, be understood by the third respondent or by an ordinary reader as conveying that in fact (or even as a matter of suspicion upon some reasonable basis) the applicant had the characteristics he asserts they conveyed about him.  Compare e.g. Harrison, at 301, 303; Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 at 828-831.

295               The only real live issue on whether the first, second and third publications were made on an occasion of qualified privilege is the issue of malice.  The occasion of those publications was clearly, otherwise, one of qualified privilege.  The second respondent, as part of his professional functions, was engaged by the ATO through the applicant’s immediate superior, the third respondent, to provide advice first about whether the applicant’s return to the DBA subsection in the face of staff opposition might be resolved by mediation, and then to explore the better understanding by those staff of the applicant’s position and vice versa.  The context was the applicant’s desire to return to the DBA subsection following his removal from that subsection in February 1993.  The second respondent and the third respondent had in the circumstances a duty and interest respectively to provide, and to receive, the reports of the second respondent pertaining to his engagement.  In fact, the process was undertaken with the applicant’s support and participation, in an attempt to resolve the reluctance of staff in the area the applicant had previously worked in to have the applicant return there.

296               I have found that, throughout, the second respondent was endeavouring to fulfil his engagement honestly.  He had no role in the selection of the group of staff to whom he spoke, nor any reason from his dealings with them to conclude that they were not appropriate persons to whom to speak for the purposes of his assignment, nor to conclude that they were being themselves other than genuine.  He made an inquiry of those staff members with whom he consulted to satisfy himself that they were appropriate persons to speak to.  The applicant in reply reiterated that he had expressed concern to the second respondent about the representative nature of the group interviewed – as he had – but there is then no evidence to indicate that the second respondent capriciously ignored that concern or proceeded to have discussions with a group he regarded as unrepresentative.  The applicant also did not challenge in cross-examination the evidence of Ms Hand as to how the interviewed group was selected.  The second respondent pursued the applicant’s discussion with him following the first communication, and in regard to the applicant’s response to his draft report prepared in July 1995.  The applicant also sought to contrast the report of Mr Magdulski with those of the second respondent as indicating, or tending to indicate, malice on his part.  I have remarked above that Mr Magdulski’s report was different in emphasis.  I do not think the fact of the difference is an indication of malice on the part of the second respondent.  It was obviously a consequence of a somewhat different interview group, but I have rejected the suggestion that the second respondent somehow engineered the group he interviewed.  The second respondent did not seek to conceal or underplay the report of Mr Magdulski; he simply included that material in the final materials he provided to the ATO on 5 December 1995 (and to the applicant shortly afterwards).

297               In the circumstances, it is not necessary to deal with the defence of justification on the part of the second respondent, that is the defence that the imputations alleged (if they were made out) were both truthful and were made in the public benefit.  Nor do I need to address the question of any damages the applicant might have been awarded if he were to succeed in his claim against the second respondent.

298               In my judgment, the fourth publication is also not defamatory of the applicant in the way he claims.  It was a letter from the third respondent to the applicant explaining the outcome of the process undertaken by the second respondent, and indicating the decision that the applicant would not then be returned to the DBA subsection.  The particular passage in the letter of which the applicant complains does not itself assert any particular characteristics on the part of the applicant, whether favourable or unfavourable.  Taken alone, I do not regard that passage as defamatory.  In the context of the fourth publication as a whole, and as the culmination of the process undertaken by the second respondent, that conclusion is fortified.

299               For the reasons given concerning the first to third publications, I also consider the fourth publication to the second respondent by the third respondent was an occasion of qualified privilege.  Informing the second respondent of the decision of the third respondent about the ATO action or decision following the second respondent’s process was one in which the necessary mutuality of relationship existed.  For the reasons given when discussing the credibility of the third respondent, I am also satisfied that he did not act maliciously when informing the second respondent of the matters in the fourth publication and he did not (as alleged) make the fourth communication to the second respondent knowing any statements within it were untrue or with reckless indifference to their accuracy.  Quite the contrary was the case.

300               It is convenient at this point also to deal with the passing of the fourth communication by the fifth respondent to the first respondent on 18 January 1996.  I consider that that communication (assuming, contrary to my finding that the fourth publication was defamatory of the applicant) also was both made on an occasion of qualified privilege and in addition is a communication which is not actionable – in the absence of malice on the part of the fifth respondent – by reason of s 48(3) of the HREOC Act.  Section 48(3) protects the communication from action ‘by reason only of’ the fact it occurred.  The only potentially relevant fact to remove that protection in the present circumstances would be malice.  In addition, the fact of the sex discrimination complaint, and the role and responsibility of the fifth respondent generally in relation to the applicant including the decision to move him from the DBA subsection made on 10 December 1992 clearly resulted in the fifth respondent having an interest or duty to pass the fourth publication to the first respondent.  My reasons for finding that the fifth respondent was not generally motivated by malice towards the applicant are set out above.  Those reasons flow through to his passing the fourth publication to the first respondent on 18 January1996.

301               The first to fourth publications were also passed by the third respondent to Mr Viney of the ATO on 4 July 1996.  He did so in the context of providing information to the ATO for the purpose of the ATO addressing the applicant’s dealings with Comcare.  Consequently, even if any of the first to fourth publications were defamatory of the applicant, as he alleges, their conveyance with the third respondent’s memorandum of 4 July 1996 was on an occasion of qualified privilege.  That privilege was not destroyed by malice on the part of the third respondent as I have accepted that he did not act maliciously towards the applicant.  That finding includes when he provided the memorandum to Mr Viney dated 4 July 1996.

302               In my judgment, the fifth publication was also not defamatory of the applicant as he alleges.  In the context in which it was made, it conveys a view of the fourth respondent about the placement of the applicant which conveys to the ordinary reader no view about the applicant’s personal characteristics but a decision made upon the basis of others’ perceptions about him but which the fourth respondent is conveying without adopting or without conveying the view that those perceptions are or might be correct.  It was also made on an occasion of qualified privilege, as it was made internally within the ATO in response to a minute of 19 April 1996 on a matter of occupational health and practice and to the applicant’s senior representative who had become involved in the matter on the applicant’s behalf.  It was made without malice on the part of the fourth respondent.  My general findings as to his credibility, and hence as to his motivation in his dealings with or concerning the applicant as he explained in his evidence, carry into the making of the fifth publication.

303               I do not therefore need to address the defence concerning the fourth and fifth publications that, if they conveyed the defamatory meanings asserted by the applicant, they were true in substance and in fact, and were communicated for the public benefit.  Nor do I need to address the contention that, at least in respect of internal communications between any of the respondents as officers of the ATO, there was no publication at all.  However, I indicate that I am not inclined to accept that contention:  see Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 366; Riddick v Thames Board Mills Ltd [1977] QB 881.  I think that the law’s protection of such communications is more properly founded in the protection afforded by the doctrine of qualified privilege.  Finally, I also do not need to address the quantum of any damages claim by the applicant against the third, fourth or fifth respondents.

304               For those reasons, as I indicated above, the defamation claim will be dismissed.

conclusion

305               The lengthy nature of these reasons for judgment reflects the extensive period over which relevant events occurred, and the complexity of the circumstances confronting the parties from time to time.  I endeavoured to confine them to relevant matters.  Relevance across such a time span and such a breadth of dealings arose mainly from the significant allegations made by the applicant about the motives of the respondents, in particular of the third and fifth respondent, in their dealings with him.  Those allegations are as vehemently made in the initial application of 22 April 1997 as elsewhere, although they find expression also in certain of the applicant’s submissions.  At one point, somewhat cryptically, he said:  to a man with a hammer, every problem is a nail.  Whether or not that is an appropriate euphemism is a matter of opinion.  But, in the end, I have rejected the claims of the applicant that the third and fifth respondents, with others including officers of the first respondent, attempted to conceal discrimination by the ATO against him by colluding about the contents of their various documents, by misdescribing the nature of the applicant’s complaints, and by other steps contrived to avoid criticism and to delay proper consideration of the applicant’s circumstances.

306               As I observed above, to his credit, the applicant tempered those allegations during the hearing to the point that in his final oral submissions he no longer sought a finding that the third and fifth respondents were aiming to hurt him by their conduct.  He maintained the claim that they recklessly ignored his interests in giving priority to their decision to great him and X equally.  However, in sections of his final written submissions, the more directly critical claims made against those respondents were also preserved, including that they, together with the first respondent, manipulated the response to the applicant’s various communications to frustrate the proper addressing of his return to the DBA subsection.  I have indicated why I reject those allegations.

307               In the result, in my judgment, the application should be dismissed against the respondents.  I so order.  I will give the parties the opportunity to make submissions as to costs.

I certify that the preceding three hundred and seven (307) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:              21 December 2005

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Second Respondent:	S Dawson
Solicitor for the Second Respondent	Phillips Fox
Counsel for the Third to Sixth Respondents:	G Stretton
Solicitor for the Third to Sixth Respondents:	Australian Government Solicitor
Date of Hearing:	20, 21, 22, 23 and 24 September 2004 6 and 7 December 2004
Date of Judgment:	21 December 2005