FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited [2012] FCA 992

FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited [2012] FCA 992

1    In paragraph 51 of the reasons for judgment the word “demands” should read “grounds” and the word “is” should appear after “Defamation Proceeding”.

Associate:

Dated:    14 September 2012

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    No later than 14 September 2012, the appellant provide security in the sum of $200,000, in a form and manner acceptable to the District Registrar, for the costs of the respondents.

2.    The appeal be stayed until the security is provided.

3.    If the appellant fails to provide the security in accordance with order 1, the appeal be dismissed.

4.    The appellant pay the respondent’s costs of the interlocutory application for security for costs filed on 27 April 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The appeal be stayed until the security ordered in proceeding NSD 526 of 2012 is provided.

2.    If the appellant fails to provide security in accordance with order 1 made in proceeding NSD 526 of 2012 today, the appeal be dismissed.

3.    The appellant pay the respondent’s costs of the interlocutory application for security for costs filed on 27 April 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

introduction and background

1    I have before me two interlocutory applications seeking orders for the provision of security for costs in two appeals. The appeals are brought from two separate proceedings commenced in the Court by Ms Vivienne Dye against the Commonwealth Bank of Australia (CBA), on the one part, and Commonwealth Securities Limited (CommSec), on the other. It is convenient to refer to the organisation of which those two companies are members as the Bank. The proceeding involved allegations of sexual harassment and sexual discrimination on the part of Mr Angus Patterson and Mr Michael Blomfield who were officers of the Bank.

2    Both proceedings were heard together by a judge of the Court (the Trial Judge). On 16 March 2012, after a hearing that lasted for in excess of 90 days, the Trial Judge ordered both proceedings be dismissed. A further amended notice of appeal from the dismissal of one proceeding and an amended notice of appeal from the dismissal of the other were filed on 6 June 2012. Before dealing with the issues raised in the proceedings and the issues likely to be ventilated in the appeals, it is desirable to say something about the background to the proceedings.

3    From March 2005 to November 2007, Ms Dye was an employee of CommSec, working in the service of CBA. For the whole of her employment, Ms Dye was employed at the same level within the Bank structure. She reported directly to four different managers according to the Bank’s reporting structure. Assessment of Ms Dye’s work performance during her employment was not universally favourable and it was not universally unfavourable.

4    Ms Dye spent about seven months on sick leave up to November 2007. Ms Dye first went on sick leave in March 2007. Her illness was attributed to stress. She remained on sick leave until almost the end of her employment in November 2007. While she consulted a psychiatrist, during that period, she was declared free of psychological or psychiatric injury or manifestation. Nevertheless, she did not return to work, and another medical practitioner cooperated with her in an attempt later to manage a return to work in a way that suited her best. She made a claim for worker’s compensation. Eventually her position was made redundant.

5    Ms Dye appears to have enjoyed a generally fruitful professional and personal relationship with Mr Patterson, another officer of the Bank, apart from one occasion, which arose from a disagreement during a work trip to New Zealand in June 2006. That matter was shortly thereafter fully and amicably resolved and for the rest of their time working together, there appeared to have been no problems. Mr Patterson as Ms Dye’s manager was required to make two formal assessments of her work performance. In each he judged her to have exceeded expectations. Apart from the matters arising from the instance in June 2006 in New Zealand, Ms Dye’s accusations against Mr Patterson were not seriously advanced until after her employment with the Bank had ceased.

6    After her employment came to end, Ms Dye made claims to the Human Rights and Equal Opportunity Commission (HREOC) that she had been sexually harassed, discriminated against because of her sex, discriminated against because of a disability and victimised because she made complaints of sexual harassment. At first, the sexual harassment allegations were principally focussed on Mr Blomfield. Within a short time they were extended to include Mr Patterson. The complaint to HREOC went to conciliation, but a settlement was not reached.

7    On 14 April 2008, the Sydney Morning Herald and The Age newspapers published a report of allegations of sexual harassment against Mr Blomfield. The articles also referred to allegations against Mr Patterson. On 16 and 17 April 2008, the Daily Telegraph newspaper published more detailed articles. Articles also appeared in other newspapers around that time. The articles in question were based on a 181 page document provided to journalists from the Sydney Morning Herald and The Age and from The Daily Telegraph by Ms Dye’s industrial representative, Mr Peter Rochfort. The document (the HREOC Statement) was largely, although not entirely, an amalgam of two documents provided to HREOC in support of Ms Dye’s complaint to it. With limited qualifications, it represented what Ms Dye had alleged to HREOC about a very wide range of issues arising out her employment, including the suggestion that she had been sexually harassed by Mr Blomfield and sexually harassed and assaulted by Mr Patterson.

8    The Bank responded to the articles by telling the newspapers and staff of the Bank that appropriate investigations had been carried out and that Ms Dye’s claims had been found to be unfounded and without basis. In addition, it was asserted that Ms Dye had only begun to make the allegations after her work performance was declared unsatisfactory and that, insofar as Ms Dye had raised allegations of the nature published in the articles, they had been investigated and rejected. The Bank told the newspapers and its staff that it would support Mr Blomfield and Mr Patterson in any action they might take to clear their names.

9    Mr Blomfield took up that offer. The publishers of the Sydney Morning Herald and The Age apologised. The publishers of The Daily Telegraph did not. Mr Blomfield then sued News Limited, the publisher of The Daily Telegraph, in the Supreme Court of New South Wales. News Limited claimed that the allegations in the articles were true and relied on their truth as a defence to Mr Blomfield’s action against it. During the hearing of the proceedings in September 2009, while Ms Dye was being cross-examined, News Limited withdrew its defence and the proceeding was settled in Mr Blomfield’s favour for an undisclosed sum.

10    Meanwhile, on 24 July 2008, Ms Dye commenced a proceeding in the Federal Court against CommSec, alleging sexual harassment and other causes of action (the Discrimination Proceeding). Later, on 15 April 2009, Ms Dye commenced a defamation proceeding in the Supreme Court of New South Wales against the CBA and another defendant (the Defamation Proceeding). Subsequently, Ms Dye was given leave to join as respondents in the Discrimination Proceeding, Sir Ralph Norris, the CEO of the Bank, and Mr Blomfield.

11    On 15 October 2010, Ms Dye applied to the Supreme Court for an order that the Defamation Proceeding be transferred to the Federal Court. On 21 October 2010 an order was made transferring the Defamation Proceeding to the Federal Court. Ms Dye was ordered to pay the costs of the Bank that had been wasted, in the sum of $250,000. She was also ordered to pay the costs of the Bank for a stay application made on 8 April 2010 in the sum of $15,000. Ms Dye subsequently appealed to the Court of Appeal of New South Wales from the costs orders in the Defamation Proceeding. On 1 August 2012, that appeal was dismissed. The Defamation Proceeding, following its transfer, is one of the proceedings presently in question.

12    Following preliminary skirmishes in relation to the two proceedings in the Federal Court, in which Ms Dye was successful in obtaining leave to amend her statement of claim in the Discrimination Proceeding, the hearing of both proceedings commenced before the Trial Judge on 7 March 2011. The hearing ended on 8 December 2011. The Trial Judge gave judgment in both proceedings on 16 March 2012. Much of what I have explained about the background thus far is taken from the findings and the reasons for judgment of the Trial Judge. I do not understand there to be any real dispute about the matters to which I have referred.

13    As I have said, both proceedings were dismissed. The Trial Judge ordered that Ms Dye pay the respondents’ costs of both proceedings as agreed or taxed. Directions were given in relation to any further application concerning costs that any party might wish to make. Pursuant to those directions, on 30 March 2012, the respondents sought two additional costs orders, namely that Ms Dye pay the whole of the respondents’ costs of both proceedings on an indemnity basis and that such costs be paid in a specified lump sum to be assessed by the Trial Judge.

14    On 20 April 2012, the Trial Judge made orders that Ms Dye pay the respondents’ costs in both proceedings, assessed overall at $5,850,000. His Honour directed that the costs ordered by the Supreme Court of New South Wales were not to be affected by those orders and that costs earlier ordered by the Full Court were not to be affected by the orders. However, all previous costs made at first instance in either of the proceedings in the Court were revoked. On 10 April 2012 Ms Dye filed notice of appeal from the orders made in both proceedings. As I have said, amended notices of appeal have since been filed in both proceedings.

application for security for costs

15    The interlocutory applications in which security is sought were filed in each appeal on 27 April 2012. In each case, a respondent to the appeal seeks an order that Ms Dye provide security for that respondent’s costs of the appeal, in such amount, manner and time as the Court determines, that the appeal be stayed until security is given, and that, if Ms Dye fails to comply with the order to provide security within the time specified in the order, the appeal be dismissed. The basis for the application for security is that, if the appeals are dismissed and orders for costs are made in favour of the respondents to the appeal, Ms Dye would not be able to meet those orders for costs.

16    That now appears to be common ground, although it is curious that, in the course of the hearing of these applications, counsel for Ms Dye was very reluctant to make any concession in that regard. For example, I suggested to counsel for Ms Dye that it must be common ground, that if the appeals fail, the Bank will not be able to recover its costs of the appeals from Ms Dye, because she does not have the assets to pay those costs. The response was that Ms Dye acknowledged that she was “impecunious”. I asked whether Ms Dye accepted that, if the appeal is unsuccessful, the Bank would not be able to recover costs of the appeal. The response of counsel was that consequence did not necessarily follow from the fact that Ms Dye is impecunious.

17    I then asked again whether it was accepted that, for the purposes of the application for security for costs, if the appeals are dismissed, the Bank will not be able to recover costs from Ms Dye, because she just does not have any assets to meet such an order. Again, counsel said that he would prefer to express it in another way, namely, that Ms Dye is “impecunious”. When I asked if it follows, as the night follows the day, that, if the appeals are dismissed, the Bank will not be able to recover costs from Ms Dye, counsel responded “probably.” When I asked again if there was any doubt about it, and that it must follow that, if the appeals are dismissed, the Bank will not be able to recover costs from Ms Dye, the response was, again, “probably”.

18    When I asked what the possibilities were, the response was that “a lot of things can happen between now and a final [hearing]”. The most that I could elicit from counsel for Ms Dye was that the “probable” position was that, if the appeals were dismissed, the Bank would not recover any costs.

19    I regard that exchange as quite extraordinary. However, I assume that the responses were given on instructions from Ms Dye, suggesting that it is by no means certain that Ms Dye does not have some access to funds. On the other hand, in the course of hearing on 14 August 2012, counsel for Ms Dye finally accepted, unequivocally, that, if the appeals were dismissed, an order for costs would not be met. He indicated that the responses given earlier were given in the context of a possible question of Ms Dye’s insolvency. The responses are relevant to another aspect of the present applications, namely, the question of whether the making of orders for security will stultify the appeal. I shall return to that question in due course.

20    Section 56 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provides, relevantly, that the Court or a judge may order an appellant in an appeal to give security for payment of costs that may be awarded against him or her. The security is to be of such amount and given at such time and in such manner and form as the Court or a judge directs. Under s 56(4), if security or further security is not given in accordance with an order under s 56, the court or a judge may order that the appeal be dismissed.

21    Rule 36.09 of the Federal Court Rules 2011 deals with security for the costs of appeals, and provides that a party may apply to the Court for an order that the appellant give security for the costs of the appeal and for the manner, time and terms for giving the security, that the appeal be stayed until security is given and that, if the appellant fails to comply with the order to provide security within the time specified in the order, the appeal be stayed or dismissed. Such an application must be accompanied by an affidavit stating the facts in support of the application. The present applications were supported by an affidavit of Mr Douglas Bishop, the solicitor for the respondents in the appeals. Mr Bishop is a partner of the law firm known as Clayton Utz.

22    I originally fixed the applications for security for hearing on Wednesday, 2 May 2012. Notice of that hearing day had been given some time before, at a callover of appeals. When the matter was called on, on that day, counsel for Ms Dye complained that the applications had not been filed in time. It appears that the applications had been filed electronically after 5pm on Thursday, 26 April 2012. Under the Rules, they were deemed not to have been filed until the following day. If the applications had been filed on Thursday, 26 April 2012 they would have been filed in time. It was suggested, but I did not inquire into the matter further, that, in any event, the forms of application and the affidavit in support had been served late on the afternoon of Thursday, 26 April 2012. In any event, counsel for Ms Dye said that he was not ready for the matter to proceed on 2 May 2012. Nevertheless, some hour and a half was taken up in the explanation of the issues in the appeals and formulating directions for the preparation of an outline of the arguments that were to be advanced on behalf of Ms Dye in the appeals. The applications were then stood over to 13 June 2012 for hearing. The hearing did not finish on that occasion. While it would have been possible for the Court to entertain the balance of the hearing shortly thereafter, it was not convenient for counsel for Ms Dye, who was about to embark on an overseas trip. Accordingly, the proceedings were adjourned to 13 August 2012.

Referral of the application for security s to the Full Court

23    The Court’s power to order security for costs is a broad one. While the power is largely unfettered, it must be exercised judicially. A single judge has jurisdiction to hear the application. However, when the applications were called on for hearing on 13 June 2012, counsel for Ms Dye, without any prior notice, sought an order that the applications for security be referred to the Full Court. The basis for the application was somewhat unusual. The reasons advanced were as follows:

1.    The applications for security will, if decided against Ms Dye, decide the appeal. That, of course, begs the question as to whether or not the making of an order would stultify the appeals. In any event, the proposition would apply to any appeal in which there is a prospect that the appellant could not provide security. That is not a justification for referring the matter to the Full Court.

2.    It was also said that it would be necessary to reflect on the merits of the appeal in respect of evidence, the admissibility of which could only be determined by the Full Court. It is difficult to understand what that proposition entails. Whether it is a single judge or a Full Court that determines the applications, it would be necessary to reflect on the merits of the appeal in respect of evidence, the admissibility of which would ultimately be determined by the Full Court.

3.    Next, it was said that the matter involves issues of public importance, going to the determination by the Trial Judge of a number of controversial issues, for the most part arising under the Sexual Discrimination Act 1984 (Cth). In the course of argument concerning the prospects of success of the appeals, it became apparent that it is unlikely that the Full Court, if the appeals proceed, would be called upon to express any view about any determinations made by the Trial Judge as to the meaning of the relevant legislative provisions. If the factual findings made by the Trial Judge are confirmed by the Full Court, then there is no way in which the appeals could succeed. As will become apparent, the appeals can only succeed if the Full Court takes a different view as to the fact-finding process of the Trial Judge and the facts found by him. In that case, the only possible relief would be to set aside the judgments and remit the matters for further trial, notwithstanding that Ms Dye claims in her notice of appeal that there be judgment for damages to be assessed. I cannot imagine that it was seriously thought that such an order would be made by the Full Court.

4.    It was then contended that the case concerns criticism by Ms Dye of an “old boys’ club”, where a challenge to one is seen as a challenge to all, “provoking an institutional response”. The case is also said to involve a possible institutional criticism of a member of the judiciary, namely that the Trial Judge “through sexist attitudes or remarks in a trial may have exhibited proved incapacity”. I regard those comments as bordering on scandalous. They should not have been made. The making of them is not a justification for referring the applications for security for costs to a Full Court.

5.    Next, it was said that a single judge of the Court cannot, or alternatively should not, in the proper exercise of discretion, determine an application for security for costs where the inevitable result of an order would be that the appeals are dismissed. In that case, the appeals would be stultified and none of the appellant’s claims would be heard. That seems to be a repetition of the first reason. A further, totally impractical suggestion was made. It was asserted that there is no practical reason why the Full Court could not hear the application for security at the start of the appeals. It was seriously suggested that the Full Court, counsel and solicitors should prepare for the hearing of what would be a very long appeal, incurring substantial costs before the applications for security were determined. One wonders what might happen if such a process were pursued and the Full Court ordered security, but the security was not provided immediately. All of the costs would have been incurred with no security for their payment. It is extraordinary that such a proposition would be seriously advanced in writing.

6.    Finally, the personal importance of the appeal to Ms Dye was advanced as a reason, having regard to the tenor of the judgment, which, the submission says, “sets about to rubbish and lambaste her, rather than simply finding her case not proved”. That is not a justification for referring the question of security to a Full Court. Any appeal would be of importance to the appellant.

24    As an alternative, counsel of Ms Dye suggested that I should state a case on certain questions as to the reasonable arguability of the appeal and reserve the disposition of the security applications for the Full Court under s 25(6) of the Federal Court Act. The questions to be the subject of a stated case were whether:

    the Trial Judge abused his position as the trier of fact and credit;

    whether a ground of recusal is no longer available;

    whether there was a basis for suggesting that Ms Dye had leaked the HREOC Statement; and

    the evidence of malice denied by Ms Dye by what is said to be a potentially erroneous ruling on evidence by another judge, from whose order no appeal has been brought.

Again, it is extraordinary that such submissions were actually made, apparently seriously.

25    In any event, for the above reasons, I indicated that I would not refer the matter to a Full Court. I have now heard detailed submissions, both from the Bank and from Ms Dye, over some two and a half days.

Discretion Conferred by s 56 Federal Court Act

26    Before saying more about the issues that would be raised on the appeals, and the considerations to be taken into account in the exercise of the discretion conferred by s 56, it is desirable to say something about the relevant legal principles, about which I do not understand there to be any real dispute (see generally Carey-Hazell v Getz Bros [2004] FCA 1334 at [29] – [32] and Clack v Collins (No 1) [2010] FCA 513 at [8] – [12]). The relevant considerations include, at least, the following matters:

(a)    the prospects of success for the appeals;

(b)    the risk that an order for costs will not be satisfied;

(c)    whether the making of an order for security would be oppressive insofar as it would stifle a reasonably arguable claim;

(d)    whether impecuniosity of an appellant arises out of the conduct that is the subject of complaint in the relevant proceeding;

(e)    whether there are any aspects of public interest that weigh in the balance against granting security; and

(f)    whether there are any other particular discretionary matters peculiar to the circumstances of the case.

27    As a general rule, in relation to proceedings at first instance, impecuniosity, and even insolvency, does not mandate that an order for the provision of security for costs should be made. However, that principle does not necessarily apply in relation to an appeal, where the appellant has had the benefit of a decision of a court at first instance. An insolvent party will not be excluded from an appeal, but if he cannot find security, he may be prevented from taking his opponent from one court to another. The feature of an appeal that marks it out from a proceeding at first instance is that there has already been a decision given by the court that heard the matter at first instance. That is to say, the appellant has had his or her day in court and has had an opportunity to present his or her case, and has had a ruling that must be presumed to be correct. Security may not necessarily be ordered if an appeal is brought in good faith and raises substantial questions of law. However, the position will be different where the appeal turns largely on questions of fact and it does not give rise to any important question of law.

28    While impecuniosity ought not to be a bar to a person prosecuting a reasonable claim at first instance, the position on appeal is fundamentally different. At the appellate level, there has already been a determination adverse to the person against whom security for costs is sought. If there is a substantial risk that, if successful, the respondent will be deprived of costs, that outcome would clearly be unjust. In a sense, it is giving to a person who has been on the receiving end of an adverse determination by the courts, a free hit at great cost to the other party in the appeal proceeding. It is against those principles that I shall consider the matters addressed by the parties.

prospects of success in the appeals

29    The principal question that has taken time in the hearing of the applications concerns the prospects of success in the appeals. In order to make some assessment of that question, namely whether there is a reasonably arguable prospect of success, it is necessary to have regard to the claims that were in issue before the Trial Judge and the grounds of appeal. The fifth further amended statement of claim (the Statement of Claim), filed on 18 July 2011 – well into the hearing – runs to some 68 pages. For present purposes, it is necessary to say something only about the early allegations made in the Statement of Claim.

Claims before the Trial Judge

30    The Statement of Claim begins by alleging that, on 16 May 2006, Ms Dye was offered, and on 1 June 2006 accepted, employment with the Bank in the position of business analyst, at the level of executive manager. She alleges that it was an implied term of that contract that neither party would engage in conduct designed to, and which was reasonably likely to, seriously damage or destroy the relationship of trust and confidence between the parties, and that there was an implied term of good faith and cooperation between the parties in relation to the performance of the contract.

31    In paragraph 18, Ms Dye alleges that, on or about 24 February 2006, on or about 18 July 2006, and on or around 13 April 2007, Mr Patterson breached the implied term of trust and confidence or good faith and mutual cooperation by:

(a)    engaging in behaviours towards Ms Dye consisting of making persistent requests for sex;

(b)    making sexually derogatory and/or sexually abusive comments about Ms Dye;

(c)    making comments of a sexual nature to Ms Dye:

(d)    terminating Ms Dye’s employment and/or threatening to terminate Ms Dye’s employment;

(e)    making comments of a sexual nature to Ms Dye regarding another employee of the Bank;

(f)    commenting on Ms Dye’s physical appearance;

(g)    persistently requesting Ms Dye to meet for drinks and/or meals after work;

(h)    advising Ms Dye to the effect that Mr Patterson would not employ her unless she allowed him to flirt with her;

(i)    on two occasions attempting to have sex with Ms Dye without her consent;

(j)    on at least one occasion trying to kiss Ms Dye;

(k)    commenting to Ms Dye on the physical appearance of other employees;

(l)    touching and kissing another employee in front of Ms Dye;

(m)    on at least four occasions indecently assaulting Ms Dye;

(n)    failing to notify the Bank of Ms Dye’s rank;

(o)    causing Ms Dye to lose her position as business analyst; and

(p)    sexually assaulting Ms Dye.

Those are extraordinarily serious allegations against Mr Patterson. The Statement of Claim alleges that Ms Dye rejected the alleged behaviour, that the behaviour was unwelcome conduct of a sexual nature, and that Ms Dye was hurt, upset and humiliated by the behaviour.

32    Paragraph 47 of the Statement of Claim makes similar allegations against Mr Blomfield. It is said that from on or about May 2006, Mr Blomfield breached the implied term of trust and confidence of the contract by engaging in behaviours towards Ms Dye that included:

(a)    making unwelcome advances to her;

(b)    making comments of a sexual nature, sexual comments about superiors, sexual comments to her about other employees, sexual comments about himself and sexual comments about Ms Dye to her;

(c)    asking Ms Dye to meet him for drinks after work;

(d)    looking at Ms Dye in a sexually suggestive manner; and

(e)    touching Ms Dye inappropriately and without her consent

The specific allegations go from (f) to (tt). Similar allegations are made to the effect that Ms Dye rejected that behaviour and that it was unwelcome conduct of a sexual nature.

Findings by the Trial Judge

33    In his reasons, the Trial Judge observed that, over a period of time, the allegations made by Ms Dye had been added to and modified. That process, he said, commenced before the publication of her allegations in April 2008. The allegations that were then published had been successively written and refined a number of times before they were put into the hands of the media. The process did not stop at that point. After mediation of the proceeding failed in November 2008, Ms Dye drafted and then rewrote further, more serious allegations, against Mr Patterson and then placed them in the hands of the New South Wales police. His Honour concluded that the allegations against Mr Patterson, in the statement she gave to the New South Wales police, are false.

34    The Trial Judge summarised the allegations of sexual harassment against Mr Patterson and Mr Blomfield, which, he said, were concentrated upon nine specific dates between 13 April 2006 and 13 April 2007. His Honour concluded that, having regard to the nature of the allegations, the gravity of the damage caused by the allegations, and the fact that they had no responsibility for the damage they have suffered, each of Mr Blomfield and Mr Patterson was entitled to have it made plain that his Honour’s conclusion is that the allegations against them were false and should not have been made. His Honour concluded that the evidence given by Ms Dye was in very many respects knowingly false.

35    The Trial Judge said that, in order to make sense of the complicated way in which Ms Dye’s case was advanced, it would be necessary to place the particular allegations against Mr Blomfield and Mr Patterson in the wider context of Ms Dye’s overall employment. The allegations were only made, in each relevant instance, after Ms Dye’s own work performance had been criticised, in Mr Blomfield’s case, and her employment had come to an end, in Mr Patterson’s case. His Honour was satisfied that the allegations that were made against each of them were without substance and were, in relation to some matters, completely fabricated. His Honour considered that, if the alleged incidents had occurred, they would have been reflected in quite different behaviour on Ms Dye’s part around the dates in question. His Honour gave two examples as an illustration.

36    The first example concerned the work trip to New Zealand in June 2006 in which Ms Dye accompanied Mr Patterson. His Honour did not accept that Ms Dye would have accompanied Mr Patterson on such a trip or would have dined with him alone, as she did on two evenings, if, as she alleged, she believed him to have raped a friend of hers on the evening of 13 April 2006 and if he had sexually assaulted Ms Dye on 9 June 2006, assaulted her again on 13 June 2006, and again assaulted her on 16 June 2006, less than one week before the trip.

37    The second example involved an invitation by Ms Dye to Mr Patterson, on 4 May 2007, that he accompany her to her apartment on a Friday afternoon, asking him to bring a bottle of red wine, which they shared together in the isolation and intimacy of her apartment when he arrived. His Honour did not accept that she would have done that if, as she alleged, Mr Patterson had assaulted her at his home three weeks earlier, on 13 April 2007.

38    The Trial Judge observed that the allegations against Mr Blomfield were factually less serious. His Honour said that a proper appreciation of the context, as well as an assessment of the allegations themselves, would yield the conclusion that it was Ms Dye, and not Mr Blomfield, who was anxious that they should establish a personal and presumably sexual relationship. It was Mr Blomfield and not Ms Dye, his Honour said, who resisted and refrained. It was Ms Dye’s disappointment with Mr Blomfield’s lack of attention to her, personally and professionally, that triggered events that culminated in an assessment of Ms Dye that was critical of her work performance. That was the prelude to the extended absence on sick leave that provided the occasion for what his Honour characterises as the attempted manipulation by Ms Dye of the circumstances in which she could return to work.

39    His Honour was satisfied that there was no substance at all in any of the allegations made in the present proceedings that Mr Blomfield and Mr Patterson sexually harassed Ms Dye. On the contrary, they were each, until she for her own reasons chose to accuse them of sexual misconduct towards her, persons whom she regarded as Mentors. His Honour considered that the fracturing of those relationships was, in each case, the result of Ms Dye’s own action, for which Mr Blomfield and Mr Patterson were each blameless. His Honour considered that no case of sexual harassment of even a minor kind had been made out in the proceedings. His Honour concluded that Ms Dye’s case for compensation for sexual harassment was based on falsehood. That is an indication of the severity of the findings made by the primary judge in relation to the allegations against Messrs Blomfield and Patterson.

40    Having made those preliminary observations, his Honour then dealt with the nature and weight of different forms of evidence before him, and specifically the question of Ms Dye’s credit. His Honour divided Ms Dye’s assertions of fact into four broad categories: assertions made in emails and other contemporaneous communications within the Bank, assertions in written versions of events designed to advance some request for redress, make some claim or support some complaint to an external body such as HREOC or the police, assertions made in evidence given orally to the Supreme Court of New South Wales in the proceedings brought by Mr Blomfield, and assertions made in evidence given orally before his Honour.

41    His Honour observed that, as the evidence unfolded, he developed reservations about factual assertions made by Ms Dye in communications with her work colleagues. He considered that Ms Dye’s written statements, made in support of various claims, were highly unreliable for a number of reasons. His Honour considered that there was no reason to make specific findings about the evidence given by Ms Dye in the Supreme Court proceedings brought by Mr Blomfield. Its chief use in cross-examination was to challenge evidence given orally in the trial before his Honour.

42    The Trial Judge found Ms Dye’s oral evidence at the trial before him to be highly unreliable. His Honour formed the clear view on many occasions that Ms Dye was unwilling to give truthful evidence. She was evasive and unwilling to make reasonable, sensible and obvious concessions. She was frequently driven to a position where she was required, in order to defend some position that she had taken, to contradict evidence given before the Supreme Court of New South Wales, or evidence given earlier in the proceeding before his Honour, sometimes only a few pages earlier in the transcript. His Honour considered himself forced to the conclusion that Ms Dye would say whatever she thought suited her purpose at the time. Where her evidence was contradicted by another witness, his Honour concluded that he should not accept it, and that where her evidence lacked corroboration, his Honour would not regard it as sufficient on any matter vital to her case.

43    The Trial Judge observed that judges are often counselled not to make unnecessary findings or observations adverse to the credit of a witness, and to bear in mind the desirability of allowing witnesses and parties to retain their dignity, insofar as that is possible. His Honour said that he was acutely aware of judicial reminders that it can be difficult to make a reliable assessment of the credit of a witness based only on demeanour, and that a judge’s actual ability to do so accurately may be very different from the judge’s belief in his or her own capacities. Nevertheless, his Honour considered that it was necessary in the case before him to make an assessment of credit and reliability in respect of at least some of the witnesses. Some findings about credit, he considered, were unable to be avoided.

44    In particular, an assessment of Ms Dye’s credit and the reliability of her evidence was unavoidable, both with respect to a large number of individual assertions and overall. His Honour said he would make that assessment doing the best that he could with the evidence admitted at trial and his assessment of Ms Dye in the witness box. Ms Dye impressed his Honour very unfavourably as a witness. His Honour considered that there were many instances where Ms Dye’s evidence was unable to be reconciled with earlier statements made by her about the same matters. Over a period of time from early 2007 to early 2009, Ms Dye advanced a number of written allegations for various purposes about matters that were also dealt with her in her oral evidence at the trial.

45    His Honour did not consider that the progressive recasting of the allegations in various documents could be satisfactorily explained by the progressive recollection and recording of actual events and that the embellishments, alterations and other additions did not permit so charitable an explanation. His Honour considered that Ms Dye’s attempts to provide some reconciliation or explanation of the changes in her stated recollections were largely unsuccessful. In very many instances, her version of events was decisively contradicted by contemporaneous records. Sometimes the contradictions came from Ms Dye’s own words, which were recorded in emails sent by her to workmates, colleagues or superiors.

46    Very early in the case, during Ms Dye’s evidence-in-chief, before she had been challenged in cross-examination or any contrary evidence had been given, his Honour noted what he considered to be a disturbing feature about her evidence and its reliability. On a number of occasions, Ms Dye gave evidence about matters that were thereafter, sometime shortly thereafter, contradicted by the terms and content of contemporaneous documents referring to those matters. Some of those documents had been prepared by her, some by others. His Honour considered that the difference between the impression left with his Honour by Ms Dye’s oral evidence and that emerging from a balanced and neutral evaluation of the documents was occasionally striking.

47    Whatever the reason might have been for the discrepancies between Ms Dye’s oral evidence and the contemporaneous records, his Honour found Ms Dye’s oral evidence, even at a very early stage of the proceeding, to be much less sure a guide than the available written record. Frequently, a version of events given in evidence-in-chief was shown to be importantly incomplete, sometimes quite misleadingly so. His Honour found that, at times, it was impossible to know whether Ms Dye’s answers concealed any inability to recall what had actually happened, whether her answers were knowingly false, or whether she was simply indifferent to where the truth lay about a particular fact, believing that to be less important than the overall pursuit of her perceived grievances.

48    On other occasions, when faced with insurmountable contradictions in her evidence, Ms Dye often found refuge in a professed lack of recollection. His Honour considered that, whatever the true explanation in individual instances, Ms Dye’s evidence on very many issues was quite unsafe as a foundation upon which to make factual findings. From the beginning of Ms Dye’s cross-examination, his Honour formed the clear impression that she was unwilling to cooperate in a reasonable fashion with counsel for the respondents and, worse, was unwilling to give candid evidence, answer questions honestly and directly or make reasonable concessions.

49    By the end of the case, and in large part by the end of Ms Dye’s evidence, the doubts that his Honour had formed about the reliability of her evidence were such that the consequences were very significant. His Honour explained, in detail, in his reasons, why particular elements of each of Ms Dye’s causes of action were not made out on the evidence, with the result that none of them succeeded. However, at a more general level, his Honour’s conclusions about the reliability of Ms Dye’s evidence were such that, in every case where she bore the burden of proof on the balance of probabilities, she did not discharge that onus. In no case was his Honour persuaded that it was more probable or not that the relevant matter, element or cause had happened or was established. The fact that Ms Dye could not discharge the burden of proof that lay on her was a reason why her case could not succeed. The position was ultimately much worse than that for her, as emerged as his Honour descended further into the detail of her allegations.

Grounds of Appeal

50    Against that background, it is necessary to say something about the grounds of appeal. In that regard, there has been a significant dispute between the parties as to the likely length of the appeal. The estimates given by counsel for Ms Dye, in the first instance, appear to me to be quite unrealistic. That is confirmed when one considers the detail of the challenges made in the notices of appeal.

51    One of the demands in the amended notice of appeal in the Defamation Proceeding that, contrary to the evidence and the weight of the evidence, the Trial Judge erred in finding as fact that certain pleaded imputations were not false. The relevant imputations were as follows:

(a)    Ms Dye made false allegations that Mr Patterson had sexually harassed her to the Bank.

(b)    Ms Dye made false allegations that Mr Blomfield had sexually harassed her to the Bank.

(c)    Ms Dye has conducted herself in such a manner as to warrant being sued by employees of the Bank.

(d)    Ms Dye wrongly leaked information to the media that was the subject of a HREOC investigation.

At least the first two imputations would, if their truth is in issue, involve canvassing all of the evidence concerning the serious allegations made by Ms Dye against Mr Patterson and Mr Blomfield.

52    Another ground is that, contrary to the evidence and the weight of the evidence, the judge erred in finding as fact that the following pleaded imputations were true or substantially true:

(a)    Ms Dye was an incompetent employee of the Bank and that her work was unsatisfactory.

(b)    Ms Dye made false allegations that she had been sexually harassed by executives of the Bank.

(c)    Ms Dye had fabricated allegations of sexual harassment against executives of the Bank because she had received a review from the Bank that her work was unsatisfactory.

Once again, those challenges put in issue substantial parts of the factual findings made by his Honour, bearing in mind, as I have already said, that the trial took more than 90 days.

53    The further amended notice of appeal in the Discrimination Proceeding runs to some 16 pages of grounds. The grounds are divided into four categories, as follows:

1.    Findings of Fact;

2.    Rulings on Evidence;

3.    Holdings of Law;

4.    Procedural and Other Issues.

54    Each category has subcategories and sub-subcategories. In relation to Findings of Fact, there are four subcategories. There are 10 grounds dealing each with findings made in relation to Mr Patterson, 13 grounds dealing with findings in relation to Mr Blomfield, nine grounds dealing with findings in relation to Mr Arnold Selvarajah, who was Ms Dye’s manager at one stage, and seven grounds dealing with findings in relation to Sir Ralph Norris.

55    In the category of Rulings on Evidence, there are grounds that his Honour erred in:

    making certain rulings;

    failing to admit into evidence certain documents;

    disregarding or failing to give sufficient weight to various matters; and

    admitting into evidence certain oral evidence.

Finally, there is the curious ground under the heading Rulings on Evidence that, contrary to the rules of evidence, another judge of the Court made a ruling that certain documents of the Bank were privileged. There was no appeal from the order made by the other judge.

56    Under the category of Holdings of Law, there are subcategories of Sexual Harassment, Discrimination, Contract, Injurious Falsehood, Trade Practices and Damages. Under Sexual Harassment, there are some 10 grounds, under Discrimination there are four grounds, under Contract there are five grounds, and under Injurious Falsehood there are five grounds. There is one ground under each of Trade Practices and Damages.

57    Under Procedural and Other Issues, there are four subcategories, namely, Recusal, Credit, Privacy and Costs. Under the subcategory of Recusal, there is a complaint made that the Trial Judge erred in failing to recuse himself, both on 24 November 2010 before the trial began and on 11 April 2011 after the trial had started. It is also alleged that his Honour failed to disclose an interest in the Bank, or related companies, because he did not deny such an interest when the question raised with him in writing. That seems to me to be an outrageous ground in the absence of anything further. It is also asserted that the Trial Judge failed to recuse himself by reason of his conduct before, during and after the trial and in judgment in a number of respects, being failure and disinclination to understand modern sexual nomenclature and failure and disinclination to understand or accept women’s perspectives on sexual matters.

58    Under the subcategory Credit there are some six grounds, which canvas various matters relating to:

    the length of Ms Dye’s cross-examination;

    an assertion that the Trial Judge protracted the trial for 94 days of oral hearing;

    an error alleged to have been committed in treating the credit findings as dispositive of the case generally and giving no adequate reasons;

    findings against Ms Dye on material findings of fact in the absence of evidence;

    the finding against Ms Dye on credit and, in particular, in relation to her allegation of sexual assault against Mr Patterson.

That last ground, of itself, is difficult to understand, in view of the findings concerning credit made by the Trial Judge to which I have briefly referred.

59    Under the subcategory of Privacy, there are grounds relating to the Admission of Evidence. Why they are treated as being in a different category from the category of Rulings on Evidence is difficult to understand. The fourth subcategory of Costs contains complaints about the special orders for costs, without any specific complaint about miscarriage of discretion.

Ms Dye’s Outline of Argument

60    In order to be in a position to assess the prospects of success of the appeals, I directed Ms Dye to provide an outline of her argument. A document of 6 June 2012 specified some 15 or 16 issues on appeal. It was suggested by counsel for Ms Dye that that indicated the limited nature of the issues that would be raised in the appeals. However, he made clear that he did not abandon any of the grounds in the amended notices of appeal.

61    In opposition to the applications for security, counsel for Ms Dye provided two written submissions, and, as I have said, addressed at some length. One ground upon which it was suggested that the discretion should be exercised against the Bank was that of delay. That such a submission as I am about to describe could be put seriously casts doubt on the good faith of these appeals. The proposition is that, had the Bank sought and obtained an order for security prior to the commencement of the trial, Ms Dye would have been unable to meet the security and the matter would not have proceeded. The assertion is then made that the Bank is seeking to use the Court’s power over security for costs as a convenient weapon against the substantive appeal, to be used at a time of its choosing, and that that is tantamount to an abuse of process by the Bank. The complaint is that the Bank has failed until now to apply for security, and that it has done so now in circumstances where the impact of an order will be to stifle or stultify the appeal, in a matter where there are, it is said, reasonably arguable grounds of appeal. That submission was seriously pressed by counsel for Ms Dye, notwithstanding that I challenged him about it. The suggestion is that the Bank should now be deprived of security, because it did not ask for security in the first place, which would have stifled or stultified the trial. There is little prospect that an order for security would have been in relation to a trial. It is highly likely that, had the Bank sought security for the costs of the trial, it would have been refused. To suggest seriously that the failure to do so is a reason why security should now be denied is extraordinary.

62    In relation to the question of whether or not a reasonably arguable appeal would be stifled or stultified, counsel for Ms Dye concentrated on three findings made by the Trial Judge. They relate to issues that he described as the “sex toys” issue, the “marry me” point and the “predator” point. I shall deal with each of those separately.

Ground of Appeal – “sex toys” issue

63    In relation to the “sex toys” issue, the written submission referred to the ground of appeal that there was an erroneous finding by the Trial Judge that no complaint was ever made by Ms Dye about Mr Patterson’s “sex toys” proposal to her in June 2006, prior to their departure for New Zealand. The purpose of that trip was to meet with heads of business units in Auckland Savings Bank and to report back to the Bank. The submission says that Ms Dye’s case was that she consistently alleged the “sex toys” conduct from June 2006 in written statements she provided to the Bank. The substance of the complaint surrounds a document that was admitted into evidence as Exhibit A31.

64    His Honour found that on Monday morning, 26 June 2006, after a brief conversation with Mr Patterson, and after then declining his invitation to meet for a discussion that coming Friday, Ms Dye took the opportunity to canvass Mr Blomfield for a position in his new division of the Bank. She did so in an email saying that she no longer reported to Mr Patterson – something his Honour found was certainly not true on any version of events. His Honour found that Ms Dye evidently decided that, rather than engaging in any discussion with Mr Patterson, she would first attempt to secure a position with Mr Blomfield, using as a reason the suggestion that she was no longer to work for Mr Patterson, a suggestion that his Honour rejected.

65    Not surprisingly, Mr Blomfield asked in a return email what had happened. His Honour was satisfied that Ms Dye chose an explanation that concealed her own contribution to a disagreement that she had with Mr Patterson. Ms Dye replied, “I didn’t want to join his little Hide the Sausage Club and he’s had a perversely nasty reaction.” There was no suggestion in Ms Dye’s evidence or in her earlier written versions of events of any conduct by Mr Patterson in New Zealand that might fall into that description.

66    When Mr Blomfield was told that Mr Patterson had propositioned Ms Dye and had reacted against her when she refused him, he sought some further idea of what had happened. Ms Dye was very unwilling to say anything further. All that she would say was that Mr Patterson had asked if she would bring her sex toys to New Zealand. In her evidence before his Honour, Ms Dye asserted that on about 13 June 2006 Mr Patterson asked if he could take his sex toys to New Zealand. Mr Patterson denied the allegation and his Honour was not satisfied that such a thing was said.

67    When Mr Blomfield was told by Ms Dye that Mr Patterson had propositioned her, he suggested Ms Dye speak with a Mr Carroll an officer of the Bank. The focus immediately changed, his Honour found. Mr Carroll was told by Ms Dye that, as a result of a disagreement in New Zealand, she felt insecure about her position and was seeking reassurance. His Honour said that that might have been true, but it was a long way from the version given to Mr Blomfield.

68    Ms Dye spoke to Mr Carroll on 28 June 2006. Mr Carroll was not called and, accordingly, gave no evidence on that topic. His Honour considered that Ms Dye’s evidence about the meeting was not satisfactory. Ms Dye claimed that, at the meeting, she read to Mr  Carroll part of a document that she had prepared for that purpose. The document did not deal at all with events in New Zealand. It dealt principally with matters before the trip, including general reflections on Mr Patterson and comments about his relationship with another female officer of the Bank. The document was supposedly prepared following a suggestion by Mr Blomfield that Ms Dye write down what had happened “in black and white”. That document was Exhibit A31.

69    His Honour observed that, during the trial, he expressed his reservations on a number of occasions about the proposition that any part of Exhibit A31 was read to Mr Carroll, or that it was even in existence at the time. His Honour said that the complaint about sexual harassment was the very thing that Ms Dye was at pains to avoid, on her own evidence. The passage that Ms Dye alleged that she read was not consistent with that stated objective. Ms Dye’s reluctance to pursue any allegation of sexual harassment, his Honour considered, was confirmed by Mr Blomfield. His Honour’s reservations remained despite the fact that Mr Carroll did not give evidence, and an inference therefore arose that his evidence overall would not have advanced the Bank’s case, although no inference higher than that arises.

70    That raises another matter that took some considerable time in the course of the hearing of the applications. Counsel for Ms Dye foreshadowed that he proposed to seek the leave of the Full Court to adduce further evidence. The further evidence consists of an extract from a witness statement prepared for Mr Carroll, which was served on Ms Dye’s solicitor by the Bank. However, Mr Carroll was not in fact called. The relevant part of the statement states:

Mr Carroll initially met with Ms Dye on 28 June 2008. At this meeting Ms Dye told him that she had complaints about Mr Angus Patterson in relation to a recent business trip to Auckland. Ms Dye referred to:Mr Patterson having asked whether she could bring sex toys on the trip, whether he could bring sex toys on the trip; feeling that her job was threatened by things Mr Patterson had said in New Zealand.

71    Counsel for Ms Dye was unable to take me to any part of the transcript where an endeavour was made to tender the extract from Mr Carroll’s statement. The most he was able to say is that it is a principle of law that, on the hearing of an appeal, further evidence will be permitted in order to avoid a miscarriage. Counsel for Ms Dye was unable to explain the basis upon which the extract from Mr Carroll’s statement would in any event be admissible, even if it had been tendered before the Trial Judge. The most he was able to say is that it was an admission made with authority. There was, however, no evidence whatsoever of Mr Carroll’s authority to make admissions on behalf of the Bank. I am not persuaded that there is any reasonable prospect that the Full Court would accept the extract from Mr Carroll’s statement as further evidence.

72    His Honour gave detailed reasons for concluding that he did not accept that Exhibit A31 was drafted at the time of the conversation with Mr Carroll or for that purpose. First, the document did not say anything about the New Zealand trip itself and is in two distinct parts with different formats. His Honour doubted whether it was a single document at all. The first part bore all the hallmarks of an initial draft, with a number of dates not actually identified, covering the period of Ms Dye’s initial dealings with Mr Patterson, but stopping before the New Zealand trip itself. The second part his Honour characterised as being quite unstructured, and containing some observations in note form, often unconnected. Secondly, the contents of the document, treating it as a single document, would be capable of being viewed as suggestions that Mr Patterson had misconducted himself towards another female employee of the bank. His Honour was satisfied that Ms Dye did not intend, at that point in time, to make any suggestion of sexual aggression or sexual harassment against Mr Patterson, even in relation to someone else. Thirdly, his Honour was satisfied that any suggestion of sexual harassment by Mr Patterson that was made to Mr Blomfield was not intended to go beyond him. It was merely something invented to provide an explanation for Ms Dye’s unusual suggestion that she no longer reported to Mr Patterson, and for her request to be provided with a job by Mr Blomfield.

73    Ms Dye foreshadowed an application to seek leave to adduce further evidence before the Full Court as to the date on which Exhibit A31 was brought into existence. Pursuant to a direction that I gave, Ms Dye produced an affidavit from an expert purporting to establish by metadata relating to Exhibit A31 that it was in fact produced prior to the discussion with Mr Carroll on 28 June 2006. It was conceded on behalf of the Bank, for the purposes of the security applications, that there was at least a reasonable argument in support of the proposition that the Full Court would receive the further expert evidence concerning the date of Exhibit A31. However, the Bank made it clear that it would oppose the adducing of such evidence.

74    Exhibit A31 made no allegation that Ms Dye was propositioned in New Zealand. As I have said, even on Ms Dye’s version, she did not read to Mr Carroll the part of Exhibit A31 that refers to sex toys. Even if it is established that Exhibit A31 was brought into existence before 28 June 2006, that fact would not in any way corroborate Ms Dye’s evidence.

75    There was, apparently, an incident in New Zealand. In the HREOC Statement of April 2008 Ms Dye made the following allegation:

I was unsure where the conversation was going and was sick of it so I said, “well, you had better fix up your sex life with your wife before you go”.

Angus became very angry and told me to shut up. He said, “how dare you, you are nothing but a stupid blonde with big tits who nobody takes seriously anyway. You have nothing to offer the business and the only reason people talk to you is because they’re trying to fuck you.”

His Honour was not satisfied that that exchange occurred. His Honour found that the version given by Ms Dye in her oral evidence of that incident was a version that had progressively developed over the previous period of almost five years.

76    Mr Patterson’s recollection of the incident was hazy. He accepted that, apart from a remark from Ms Dye, about which he took offence, he said something using the word “blonde” that offended Ms Dye. He accepted that he used the word “blonde” in a context that gave rise to offence on the part of Ms Dye. He apologised over dinner, and apologised on the way back to the hotel. On the following Monday morning, he made another attempt to set aside some time to resolve that matter and to move forward. Ms Dye proposed a document by way of settlement of the disagreement with Mr Patterson. Ms Dye drafted the document, which his Honour set out in full. I shall quote parts of it:

The purpose of the meeting is to reach a resolution to these matters.

On the evening of Thursday 22 June you, Angus, made a derogatory indication about my professional contribution to this company … I found the nature of these comments personally insulting and abusive of the power of this reporting line …

You have acknowledged that I was offended by the behaviour but claim non-recollection of your comments …

I need to set some boundaries to our working relationship.

•    I feel that my contribution to your part of the business over the past two months has been greater than you have chosen to acknowledge. I therefore request a formal performance plan and KPIs so that my contribution can be objectively measured.

•    I don’t think it will benefit our professional relationship to pretend that this incident didn’t happen so I request that we be direct and honest with each other at all times.

•    I hope that the opportunities you have offered me are based on a genuine interest in my career progression and a belief in my potential to contribute to this bank in future years.

•    I’m learning a lot from you and I value this in a manager above all else.

•    I care for you, Angus, and therefore your family, on a personal level.

•    I would like us to enjoy each other’s company again.

To call a resolution to these matters, for us to continue working together and for me to feel secure in my job, I need for you to acknowledge that your behaviour has caused me upset and concern.

Your agreement to commence with a fresh start on this basis is requested.

77    His Honour did not regard any of the matters set out in that document as consistent with a genuine accusation of sexual harassment. His Honour regarded the matters as consistent with Ms Dye having become anxious about the security of her employment and seeking reassurance. Mr Patterson endorsed the document, saying:

I acknowledge the issues raised by Vivienne and that my behaviour on Thursday evening and subsequent actions on Friday morning would have caused Vivienne both personal and professional distress. For this I apologise unreservedly and iterate that it was never my intent to cause such distress or personal/professional discomfort. I agree wholeheartedly to the boundaries as suggested and look forward to a professional and productive working relationship going forward.

78    His Honour was satisfied that Ms Dye’s feeling of insecurity did not arise from any suggestion by Mr Patterson that her position with him was or would be terminated. What Ms Dye sought, and what Mr Patterson agreed to, was that their ongoing working relationship would go forward with mutual goodwill. Their agreement represented a complete settlement of the issue that arose between them. It had nothing to do with sexual harassment. His Honour considered the incident did not support any of the causes of action for the present proceedings.

79    In the written submission in support of the proposition that the appeal is reasonably arguable, Ms Dye asserts that there is overwhelming evidence in support of her contentions that Exhibit A31 was brought into existence prior to the meeting with Mr Carroll. I do not consider that, even if the further evidence were admitted, and it were found that Exhibit A31 had been brought into existence before the discussion with Mr Carroll, that evidence would make any difference to the conclusions that are likely to be made by the Full Court in relation to the findings of fact made by the Trial Judge concerning Ms Dye’s allegations.

Ground of Appeal – “marry me” issue

80    The second matter to which attention was addressed by counsel for Ms Dye was what he described as the “marry me” point. One of the grounds in relation to the findings made concerning Mr Blomfield involves alleged conduct on 8 August 2006, in which Mr Blomfield asked Ms Dye for a drink at the Westin Hotel in the city, after which he walked her home to her apartment in Kent Street. The assertion is that he said, on three or four occasions, “What would you do if I asked you to marry me or to have my babies?” His Honour found that there was no substance in the suggestion that Mr Blomfield ever asked Ms Dye to marry him or suggested it as a possibility. His Honour found that, during the walk and afterwards, Mr Blomfield attempted to explain to Ms Dye that there was no possibility of a relationship between them. He told her that he was married, he had children, and he was a Catholic. Mr Blomfield attempted to explain to Ms Dye the impossibility of any relationship between them. At one point, Ms Dye said that, if he left his wife, she would dedicate her life to making him the most powerful man in the world. Mr Blomfield thought it was a serious comment, and he was disturbed by it. His Honour found that the conversation ended shortly afterwards.

81    His Honour found that there was no substance in any suggestion that Mr Blomfield sexually harassed Ms Dye on 8 August 2006. On the contrary, his Honour was satisfied that Mr Blomfield resisted Ms Dye’s overtures, which were sufficiently demonstrative for at least one of the people with him to notice, and advise him that something needed to be done. His Honour was also satisfied that Ms Dye had told many untruths about the events on the evening in question. In that, as in many other matters, his Honour was not prepared to accept Ms Dye’s unsupported or uncorroborated assertions about anything that she alleged happened on that evening.

82    His Honour considered that, in so far as independent evidence was available, it was decidedly against Ms Dye’s version of events. In that regard, counsel for Ms Dye complained about rulings by the Trial Judge to the effect that he would admit Ms Dye’s prior inconsistent statements but not her prior consistent statements. The complaint was that his Honour’s approach was that, unless the Bank’s counsel had cross-examined Ms Dye on a prior statement, he would not admit the statement and, even then, he would only admit the portion of the statement on which Ms Dye had been cross-examined.

83    The specific submission was made that it was difficult to understand how the Trial Judge was entitled to refuse to admit Ms Dye’s detailed complaint to HREOC. The proposition is advanced that, since the Bank asserted that Ms Dye had given the HREOC Statement to the Daily Telegraph in April 2008, it should have been admitted on the basis that it was a business record of News Limited. Such a proposition is completely untenable. The contention was also advanced repeatedly during the course of argument that, because the Bank, through its counsel, had cross-examined Ms Dye on the basis of prior inconsistent statements made by her, any document that purported to be consistent with her case was admissible. That proposition, too, seems to me to be totally untenable.

84    His Honour observed, in the course of dealing with an application concerning prior consistent statements, that, if it was necessary, in order to put in context part of a prior statement on which there had been cross-examination and which had been admitted as inconsistent, that some other part of the statement be admitted in order for the admitted part not to be misleading, then clearly that other part would be admissible. His Honour indicated considerable doubt as to whether any other basis was open. At that stage, counsel for Ms Dye foreshadowed a “compilation of extracts” from prior consistent documents. His Honour said that he thought that the contention that such a compilation could be admitted would have some difficulty but said that he would deal with the matter on the following day. Apparently, however, the matter was not pressed on the following day, or at all. The matter was not raised again. It is difficult to see how Ms Dye can complain about the non-admission of material that was not actually tendered.

Ground of Appeal – “predator” issue

85    The third matter is described as the “predator” point. The assertion is made that, after Ms Dye complained to HREOC, Sir Ralph Norris, the chief executive officer of the Bank, personally orchestrated “an email hate campaign against Ms Dye”, sending out numerous emails to the Bank’s employees and letters to senior editors of newspapers. It is asserted that one of the accusations that was made by Sir Ralph Norris against Ms Dye was that she was a “sexual predator”, founded on her supposed conduct at Mr Blomfield’s celebration drinks on 15 June 2006. It is asserted that that there was “not one jot of evidence” for such an assertion.

86    The written submission complained that Sir Ralph Norris did not give evidence to explain his correspondence or the basis of it. It asserted that he had no information or any evidence before him in April 2008 to make any such assertions about Ms Dye. The submission asserted that the overwhelming evidence before the Trial Judge, or which should have been admitted by him, was that there was no evidence upon which it could properly be concluded that Ms Dye was a sexual predator.

87    The basis for the statement appears to have been an internal report prepared for the Bank. The statement was not published in the media. To the extent that it was published, it was published, on his Honour’s findings, in response to allegations already published in the media by Ms Dye herself. In any event, it is difficult to see where the complaint leads. The real problem for Ms Dye is the overwhelming assessment made by the Trial Judge that he simply did not believe anything that Ms Dye said.

88    In Ms Dye’s outline of argument, the first two issues said to be raised on the appeal are, first, whether the Trial Judge erred in his rulings concerning the authenticity of Exhibit A31 and, secondly, whether his Honour erred in finding that Ms Dye had fabricated the claims of sexual harassment involving “the sex toys conduct”, the “blonde” insult of 22  June  2006 and the “hide the sausage club” conduct, together with other conduct alleged in Exhibit A31. Even if there are reasonably arguable bases for overturning some findings made by the Trial Judge, if the three matters to which I have referred are the best examples, it is difficult to see how the appeal could possibly succeed in relation to the factual challenges to the findings of fact made by the Trial Judge.

89    The grounds under the heading Findings of Fact set out in the first category of the grounds of appeal require a detailed consideration of the evidence and his Honour’s reasons. The reasons run to some 744 paragraphs. His Honour dealt in detail with each of the separate allegations of sexual harassment, as well as dealing in some detail with the course of Ms Dye’s employment by the Bank. I am not persuaded, from what I have been taken to, that there is any real prospect that the Full Court would overturn the findings of fact made by the Trial Judge to an extent that would justify remitting the proceeding for a new trial.

Ground of Appeal – recusal

90    It is necessary, however, to consider another ground that is pressed, namely, the Trial Judge’s refusal to recuse himself. The assertions made in the outline of argument are, in many instances, unsupported by any factual material before me, and are challenged by the Bank. The bases upon which it is said that his Honour should have recused himself are set out in some six paragraphs. The first is that the Trial Judge knew Mr Carroll and had conferred with him, and on the basis of Mr Carroll’s instructions, cross-examined a Mr Lane in an earlier proceeding brought against the Bank by Mr Lane. There is no evidence that the Trial Judge had conferred with Mr Carroll. While his Honour had had some acquaintance with Mr Carroll in the earlier proceedings, there is nothing to suggest that that arrangement was anything other than a purely professional acquaintance between witness and counsel. It is said that, in the earlier proceeding, Schimdt J found Mr  Carroll to be a liar. The complaint is that Mr Carroll and another prospective witness in the present matter, Mr Matthews, gave evidence in that earlier proceeding. There is no material before me that confirms that assertion and, indeed, the Bank says that Mr Matthews did not give evidence in the earlier proceeding. There is also an assertion in the outline of argument that “it appears” that the Trial Judge appeared in several industrial matters for the Bank and gave advice to the Bank. It is extraordinary that such assertions are made without material to support the allegation. It is then asserted that the Trial Judge stated that, according to the judgment of Schmidt J, Mr Carroll was not a witness. In fact, what his Honour said was that Mr Matthews was not a witness. The carelessness with which the submissions have been prepared is unfortunate.

91    Next, the outline of argument complains that the Trial Judge’s involvement in the earlier proceeding before Schmidt J having cross-examined Mr Lane, prevented Mr Lane from giving evidence for Ms Dye. The outline of argument asserted that Mr Lane was Ms Dye’s intended expert witness on industrial and workplace issues in the proceeding. The complaint made is that, after Mr Lane provided a draft report and learnt that the Trial Judge was to hear the matter, he thereafter refused to assist Ms Dye any further. The assertion is also made that Schmidt  J held that Mr Lane’s contract of employment was unfair. I was not taken to any findings on that question and, indeed, senior counsel for the Bank said that Mr Lane had been dismissed by the Bank and that the dismissal was appropriate.

92    Next, there is a complaint that the Trial Judge’s associate had previously been employed by the Bank’s solicitors. The outline of argument also complains that the Trial Judge failed to respond to a query as to whether or not he owned shares or any member of his family owned shares in the Bank. Finally, the outline of argument contains a complaint that his Honour made “sexist remarks” during the course of the cross-examination of Ms Dye. The example given is of the alleged use of the phrase “bunny boiler” by Mr Patterson about Ms Dye. The complaint is that the Trial Judge made no attempt to find out what the words meant, other than to ask Mr Patterson. One wonders what other attempt a judge might make but ask a witness. If there was a question about it, it would have been perfectly open to counsel for Ms Dye to adduce such evidence as was relevant to explain the expression.

93    I do not consider that any material before me gives rise to any likelihood at all that the Full Court would overturn the decision of the Trial Judge by reason of his failure to recuse himself.

Whether the Appeals will be Stifled or Stultified

94    Ms Dye contends that, if an order for security is made, her appeals will be stifled or stultified. The Bank contends that Ms Dye has failed to discharge the onus of establishing that, if an order for security were made, she would not be able to proceed with the appeals. I have already referred to the curious answers given by counsel for Ms Dye when he was unwilling to accept that, if an order for costs were made, Ms Dye would be unable to meet it. Notwithstanding that reluctance, I am certainly prepared to conclude that the Bank would not have any success in recovering its costs if an order were made following dismissal of the appeals. I have already expressed the view that I think it is unlikely that the appeals will succeed, on the material to which I have been taken.

95    Ms Dye also relies on the proposition that her present impecuniosity is the result of the conduct about which she complains. She says that she is unemployable by reason of the Bank’s conduct. His Honour found, however, to the contrary, namely, that, to the extent that her reputation has been sullied by what has been published, that was her own doing, rather than that of the Bank. She participated in the publication of the HREOC Statement in April 2008, and it is that publication that has led to any difficulty that she may have in obtaining employment.

96    There is some evidence before me that Ms Dye is unemployed, and has had difficulty in obtaining employment. There is also evidence that she may be suffering from mental conditions resulting from the stress that has arisen from this litigation. On the basis of the findings by the Trial Judge, however, that stress is really of her own creation. I do not regard that matter as relevant to the exercise of discretion.

97    The Bank points to the fact that, during the 90-odd day trial, Ms Dye was represented by both a solicitor and counsel, and sometimes more than one counsel, indicating that she had some support in that regard. That, of course, does not mean that, if the appeals were allowed to proceed, she would necessarily be provided with funds for either solicitors or counsel. On the other hand, there has been no suggestion that either solicitor or counsel have been appearing for Ms Dye pro bono. Had there been a suggestion along those lines, that may preclude any inference being drawn that her appeals would be stifled or stultified. The Bank contends that an inference should be drawn from the fact that Ms Dye has been represented throughout that, although she may have no funds of her own, security might be provided from another source. It does not necessarily follow that, if security were ordered, the security will not be provided from some such other source. That, however, on the material before me, is a matter for speculation.

Likely length and costs of appeals

98    There is a question as to the likely length of the appeals, assuming they proceed. In his affidavit filed in support of the applications, Mr Douglas Bishop estimated the costs likely to be incurred if the appeals were to proceed. Mr Bishop has assumed that there will be at least one further directions hearing and a callover for the appeals before they are heard. Mr Bishop analysed the numerous grounds set out in the original forms of the notices of appeal. A number of those grounds have now been abandoned. Nevertheless, there are still many grounds remaining as I have already instructed. Mr Bishop sets out, in some detail, his estimate of the time that would be necessary for the preparation of the appeals, on the assumption that all of the present grounds are pressed.

99    Counsel for the Bank estimates that the appeals will take some 15 days to be heard, assuming that no limitations are placed on the length of oral submissions, or five days plus, if limitations are placed on the length of oral submissions. Counsel for Ms Dye contended that the appeals will take no more than five days, on that latter basis. Mr Bishop has prepared an estimate of the costs that he considers would likely to be ordered in favour of the Bank if the appeals were dismissed. He provides two estimates – one on the basis of a three day hearing, being the estimate originally advanced by counsel for Ms Dye, and one on the basis of a 15 day hearing. Mr Bishop estimates that the total costs and disbursements recoverable on taxation would, on that basis, be between $198,000 and $335,000. No challenge was made to that estimate.

100    On the hand, a curious submission was advanced that the estimate was not a realistic one, and that it was being made in order to persuade the Court that the sum that was being sought was not unreasonable. The thesis advanced by counsel for Ms Dye appears to have involved dividing by 94, the number of trial days, the total costs incurred by the Bank for the conduct of the trial. That would lead to a daily expense in excess of $100,000. Mr Bishop’s estimate of costs is significantly lower than that amount per day. Clearly the thesis advanced by counsel for Ms Dye is misconceived. The total costs of the trial included the cost of preparation and the conduct of complex litigation that was in the making for some years. I see no reason at all to doubt the estimates made by Mr Bishop. I do not consider that there is any basis for drawing an inference that the Bank was in some way moulding its claim in order to make it more likely that an order for security might be made.

101    On the basis of the complexities to which I have been taken by counsel for Ms Dye during the course of argument, for the purpose only of demonstrating that there is a reasonably arguable prospect of success, it is clear that a detailed analysis of all of the factual material and questions that have been raised on behalf of Ms Dye in the notices of appeal would require a hearing well in excess of five days. It might well be possible to limit the hearing time. However, that would not, of course, save a great deal of time for the Court. The greater the extent to which oral argument is limited, the greater will be the cost of preparing detailed written submissions and cross-references.

other matters submitted by ms dye

102    The written submissions provided on behalf of Ms Dye in opposing the orders for security sought suggested that, in the exercise of discretion, regard should be had to several matters apart from the reasonable arguability of the grounds and Ms Dye’s impecuniosity. First, she says that she and her legal representatives have complied with the directions given by the Court on 1 May 2012 to prepare the outline of argument. At this stage, no complaint is made of dilatoriness on her part. The fact that she has not been dilatory is not a justification for the exercise of discretion in her favour. Reference to public interest in certain areas of law is also put forward. However, as I have said, at the moment I do not understand how questions of law would be raised. The appeal will turn on the facts. I have also referred to the quite extraordinary contention that delay on the part of the Bank by reason of its failure to ask for security before the trial at first instance should now be held against it.

Conclusion

103    There is no doubt that these appeals are of great importance to Ms Dye. She faces the very substantial costs order that has been made by the Trial Judge if the appeals do not succeed. It is probably more likely than not that she will not be able to pursue the appeals if an order for substantial security is made. On the other hand, the Bank has already incurred many millions of dollars in costs in resisting claims that the Trial Judge has overwhelmingly rejected. The Bank will incur further substantial costs, which will not be recoverable if the appeals proceed and it fail. In all of the circumstances, I consider that the appropriate course is to accede to the Bank’s applications.

104    The purpose of security is not necessarily to provide a full indemnity. Nevertheless, an order for security should provide a substantial capacity to meet an order for costs for an appeal that fails. I consider the appropriate order is that security in the sum of $200,000 be provided in a form acceptable to the Registrar. Counsel for Ms Dye has made applications for expedition of the appeals. In those circumstances, if security were to be given, it should be provided sooner rather than later. Having afforded Ms Dye’s advisors the opportunity of indicating the time within which security should be provided, I propose to order that it be provided within 30 days and that the appeals be dismissed if it is not.

Associate:

Dated:    14 August 2012