FEDERAL COURT OF AUSTRALIA

Shea v TruEnergy Services Pty Ltd (No 3) [2013] FCA 935

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

introduction

1    The applicant, Kate Shea, was dismissed by her employer, the respondent, EnergyAustralia Services Pty Ltd, on 6 February 2012 on the ground that her position had become redundant. In this proceeding, the applicant alleges that, to the contrary, she was dismissed because she exercised a workplace right by having made five successive complaints (or for reasons including such reason or reasons), that her dismissal was adverse action within the meaning of s 342(1) item 1(a) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) and that the respondent contravened s 340(1) of the Fair Work Act. The applicant further alleges, inter alia, that a culture of lewdness and sexual harassment, in which the managing director, Richard McIndoe participated, and condoned, prevailed in the respondent’s workplace.

2    During the course of the trial, the applicant sought the admission into evidence of a number of telephone text messages set out in the report of David Caldwell, a computer forensic practitioner of Ferrier Hodgson, which were attached to Mr Caldwell’s outline of evidence filed on 28 June 2013.

background

3    In his outline of evidence, Mr Caldwell stated he would give evidence that on 11 June 2013 Ms Shea contacted him and delivered to him a Nokia 6021 mobile telephone from which she requested that saved SMS messages be extracted and a forensic copy made. Mr Caldwell stated that he performed that task and attached a copy of the report, which included a number of recorded text messages apparently sent and received between 2 November 2005 and 24 July 2007, albeit some calls apparently later than 2007 were recorded without setting out a text message.

4    The dates and times of the telephone calls and whether they were incoming or outgoing were frequently, albeit not invariably, recorded. The parties making or receiving the messages were identified by name in only a few cases and then by reference to a first name only. The telephone numbers from which the calls were made and the text messages were sent were frequently shown, as, in some instances, were the numbers of the telephones which received the call.

5    The applicant’s notice to admit dated 1 August 2013 sought admission that various numbered text messages were sent by Mr McIndoe to one Ms Barnett or received by Mr McIndoe from Ms Barnett. Ms Barnett was not a party to or witness in the proceeding. It is common ground that she was general counsel, and at one stage a director, of the respondent, and was engaged in an intimate relationship with Mr McIndoe during the period when the text messages were sent.

6    By a notice of dispute dated 12 August 2013, the respondent disputed the matters in the notice to admit, under cover of a fundamental objection that the outline of evidence and attached report of Mr Caldwell, which included the text messages, were neither relevant nor admissible in this proceeding. Before me, however, the respondent conceded that two telephone numbers shown on Mr Caldwell’s report ending in the digits 3355 and 6131 respectively were the numbers of telephones used by Mr McIndoe. The applicant submitted, and the respondent did not appear to dispute, that the Nokia telephone from which the messages were extracted was, at the relevant time, that of Ms Barnett, who received messages from the numbers used by Mr McIndoe and who also sent some messages to Mr McIndoe’s telephone.

the parties’ submissions

7    The applicant submitted that the telephone text messages passing between Mr McIndoe and Ms Barnett were relevant and admissible because the messages attributable to Mr McIndoe were explicit, lewd and obscene communications with a female recipient. Accordingly, the sending of those messages went to establish the probability that Mr McIndoe routinely used explicit, lewd, obscene, indecent and sexualised language about women and would do so in the workplace. That probability in turn supported the applicant’s allegation that Mr McIndoe presided over, participated in and contributed to a lewd workplace in EnergyAustralia at the relevant time of Ms Shea’s employment and, accordingly, did not respond appropriately to Ms Shea’s complaints of sexual harassment but instead terminated her employment on the pretext of a fabricated redundancy.

8    The respondent submitted that, to the contrary, the text messages were not relevant to any issue in dispute in the litigation and should, in any event, be excluded because they were improperly or illegally obtained within the meaning of section 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”).

Acquisition of THE telephone

9    I heard evidence as to how the telephone was obtained by Ms Shea, who, in her Further List of Documents of documents filed 28 June 2013, stated that she recently came into possession and control of the Nokia 6021 mobile telephone which she took to Mr Caldwell of Ferrier Hodgson. In examination-in-chief, Ms Shea stated that the telephone was sent to her in June 2011 by a former employee of EnergyAustralia (whom she subsequently identified in cross-examination as one Nicola Wocjik), who thought that it belonged either to Ms Barnett or Mr McIndoe. It was, however, common ground that the telephone was once used by Ms Barnett.

10    Ms Shea’s evidence was that Ms Wocjik, who did not tell her who currently owned the telephone, obtained it pursuant to a practice at the respondent company of recycling executive members’ used telephones. Such telephones were cleaned of messages and allocated to other employees. In the present case, Ms Wocjik, while working at the respondent, obtained the telephone which had not been cleansed of messages to and from its former user. The telephone had “gone with” Ms Wocjik when she left her employment with the respondent.

11    Ms Shea stated that she was almost certain that the number terminating in 3355 was Mr McIndoe’s Hong Kong telephone number and that another number ending in the digits 6131 was an Australian telephone number of Mr McIndoe. Ms Shea stated that the contact identification data list on the record produced by Mr Caldwell included the telephone numbers of Ms Barnett’s executive assistant, her father, her parent’s home, her sister, her executive assistant, Ms Shea herself, another friend, Mr McIndoe (mobile telephone number) and the company secretary of CLP in Hong Kong.

12    Ms Shea stated that she initially did not know what the telephone contained but assumed that it contained confidential messages. She also assumed that such messages should have been cleared from the telephone. That is, Ms Shea implicitly acknowledged the probability that the messages remained on the telephone by oversight. Ms Shea nevertheless took the telephone to Ferrier Hodgson because she suspected that it might contain evidence which would assist her in this case. She did not seek Ms Barnett’s consent to use the telephone or the messages and records produced from it by Ferrier Hodgson. Ms Shea stated that she had fallen out with Ms Barnett, who was her best friend in 2007.

13    The telephone records contained evidence of numerous calls to and from Ms Shea which had been deleted and no text message to or from Ms Shea was retrieved from the telephone. Ms Shea testified that she knew nothing of why all calls to and from her had been deleted. She stated that Ms Wocjik did not tell her that she had done or organised any action to delete calls to and from Ms Shea.

14    In cross-examination, Ms Shea acknowledged that she received the telephone in the mail after she had contacted Ms Wocjik and requested the telephone, of which she had been aware for some time, knowing that it might contain messages from Mr McIndoe which could be used in the litigation.

15    Ms Shea acknowledged that she did not know Ms Wocjik well. She did not ask Ms Wocjik if she were the lawful owner of, or entitled to, the telephone and assumed that it had belonged to Ms Barnett. Ms Shea had never seen any of the messages on the telephone before, although she stated that Ms Barnett had showed her other personal text messages she received from Mr McIndoe during the course of their relationship.

consideration

Whether the text messages were relevant to the proceeding

16    I concluded that the text messages were not relevant to any issue in the litigation and were accordingly inadmissible.

17    I considered the series of telephone text messages as a whole. Senior counsel for the applicant drew my attention to messages said to be particularly relevant to the applicant’s case. Albeit the record of telephone calls is not reliable or complete even, apparently, in relation to those of Ms Barnett and Mr McIndoe, the text messages concern a number of different subjects, including family matters and the state and future of the interlocutors’ personal relationship. Some messages, including those identified by senior counsel, refer to sexual matters and contain explicit sexual statements, erotic statements and expressions of sexual desire. While the applicant submitted that the tone and content of the relevant text messages were obscene, I was not persuaded that those attributed to Mr McIndoe would be adjudged obscene according to, or outrage, prevailing standards of decency when sent, as these messages were, in a private exchange between consenting adult sexual partners. It is unsurprising that such exchanges include risqué or sexual statements, particularly when part of a continuing dialogue which testifies to mutual encouragement and willing participation.

18    Views may differ about acceptable limits on the tone and subject matter of private exchanges between consenting adult sexual partners or persons otherwise in a relationship of an intimate personal character. It is, however, probable that according to modern standards of conduct, considerable latitude applies to such exchanges where they are confined to consenting adult parties.

19    The telephone text messages (including those which do not involve sexual matters) are intensely personal, inherently private communications, exchanged by apparently willing adult participants. The applicant did not suggest that Mr McIndoe ever intended the text messages to be communicated to anyone other than the designated recipient, Ms Barnett. Had Mr McIndoe circulated sexually explicit messages on the office email, broadcast them in the office or otherwise made them known to persons in the workplace, their relevance to the present proceeding would be self-evident. There is, however, no evidence that Mr McIndoe ever attempted or intended to make the messages (which Ms Shea had never seen before) public, either in the workplace or elsewhere. Similarly, while the messages may well have been relevant had they concerned sexual observations about other persons or actual or proposed sexual or indecent conduct in the workplace, they did not deal with such matters.

20    The history of Ms Shea’s acquisition of the telephone suggests that its previous possessor realised that the messages were of a private nature, that the authors would not wish to make them public and that publication may be embarrassing or damaging to the authors. Mr McIndoe and Ms Barnett were not, it would seem, apprised of the retention of the messages and did not consent to their use or publication. Even if the messages attributed to Mr McIndoe could fairly be described as lewd when expressed in a private and intimate context (rather than merely erotic or sexually explicit), it would not, in my view, follow that their author would be likely to replicate in the workplace the content, tone or subject of text messages which were indisputably intended to remain private.

21    The applicant submitted that although the messages were intended to be private, they were relevant because the parties to the exchange were colleagues in a workplace where Mr McIndoe had a higher status than Ms Barnett, from which an abuse of power or absence of free consent on her part might readily be inferred.

22    In my view, that conclusion does not follow. There was nothing to suggest that Mr McIndoe’s communications were not willingly received or that the relationship involved an abuse of power, was other than voluntary or indicated a tendency to sexual predation in the workplace. Personal and sexual relations between work colleagues of different status are commonplace, are not unlawful and are not necessarily improper, albeit it in particular circumstances they may be or become so. Nor, in my view, contrary to the applicant’s assertion, did anything hinge on the fact that Mr McIndoe was married to another person while engaged in a relationship with Ms Barnett. The state of an employee’s personal and domestic relationships is ordinarily regarded by workplace colleagues as a matter for the individual’s circumstances, beliefs and moral codes. There was nothing to suggest that the relevant personal relationships of Mr McIndoe were obtruded into the workplace such as to assume, whether in themselves or in combination with other circumstances, relevance to the existence of a workplace culture of lewdness and sexual harassment.

Whether the text messages were inadmissible under s 138 of the Evidence Act

23    The respondent also submitted that if, contrary to my conclusion, the text messages were relevant, they were inadmissible because the evidence was improperly obtained within the meaning of s 138 of the Evidence Act.

24    While I considered, on the basis of the evidence that emerged, that the text messages were irregularly obtained in certain senses, it was unnecessary to decide whether the evidence was improperly obtained within the meaning of s 138 of the Evidence Act, as the text messages were in my view irrelevant and their evidentiary value could not outweigh any undesirable aspects of the means of their acquisition.

25    Section 138 of the Evidence Act relevantly provides:

138    Discretion to exclude improperly or illegally obtained evidence

(1)    Evidence that was obtained:

(a)    improperly or in contravention of an Australian law; or

(b)    in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…

(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)    the probative value of the evidence; and

(b)    the importance of the evidence in the proceeding; and

(c)    the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d)    the gravity of the impropriety or contravention; and

(e)    whether the impropriety or contravention was deliberate or reckless; and

(f)    whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)    whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)    the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

…

26    In Parker v Comptroller-General of Customs (2009) 252 ALR 619; [2009] HCA 7 on which the respondent particularly relied, French CJ discussed impropriety under the Evidence Act (at [26] to [30]) as follows:

…

There is no definition of “impropriety” or “contravention” in the [Evidence] Act.

…

[28]    The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.

[29]    The meanings to be accorded to the terms “improperly”, “impropriety” and “contravention” in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of “improper” include “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”. “Contravention” refers to “[t]he action of contravening or going counter to; violation, infringement, transgression”.

[30]    Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.

(footnotes omitted)

27    French CJ thus contemplated a broad construction of impropriety, encompassing conduct which, while not in breach of any legal obligation, is abnormal or irregular, and perhaps, contrary to the conscientious observation of social or moral norms.

28    The approach adopted in other decisions may be narrower (see, for example, Robinson v Woolworths Ltd [2005] NSWCCA 426 per Bastan JA at [23]; R v Cornwell (2003) 57 NSWLR 82 per Howie J at [19]-[20]). In the context of an urgent ruling, I reached no firm conclusion on the scope of “improperly obtained” under the Evidence Act.

29    In my opinion, however, the way in which the telephone in this case was obtained and dealt with and the messages thereon extracted and recorded, was “abnormal” or “irregular”. First, the circumstances bespoke a probability that the possessor of the telephone was not entitled to it. Such entitlement appeared contrary to the convention and practice of recycling telephones at the respondent which Ms Shea acknowledged. Although ownership of the telephone might nevertheless have passed by some lawful means to Ms Wocjik, Ms Shea did not clarify that by asking Ms Wocjik whether she was entitled to the telephone and could properly license Ms Shea to deal with it as she did.

30    Secondly, the manifestly private nature of the text messages, including those that concern family and interpersonal matters, would, in the ordinary course, bespeak an obligation to treat them as confidential. Although first suspecting, and ultimately ascertaining that the telephone contained intimate personal messages of Mr McIndoe and Ms Barnett which she considered would or might assist her case, Ms Shea did not seek their consent or approval, for the obvious reason that it would have been withheld.

31    It is well established that confidential information of a personal and private nature may be protected by an action for breach of confidence (see, for example, Prince Albert v Strange (1849) 47 ER 1302; Sullivan & Sullivan & GKR Karate Australia Pty Ltd v Sclanders & Goldwell International Pty Ltd (2000) 77 SASR 419; [2000] SASC 273 (“Sullivan v Sclanders”) at [48]). A third party who receives confidential information may be subject to an obligation of confidence if the party is aware of or has reasons to suspect the confidential nature of the information (Sullivan v Sclanders at [54]-[58]).

32    In my view, the telephone and text messages it contained were, in the circumstances, obtained irregularly. As stated above, it was unnecessary to determine whether they were subject to an obligation of confidence or improperly obtained, as the evidence was irrelevant to the issues in dispute.

Associate:

Dated:    19 September 2013