FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited [2012] FCA 242
Citation: Dye v Commonwealth Securities Limited [2012] FCA 242
Parties: VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED, RALPH NORRIS and MICHAEL BLOMFIELD
VIVIENNE LOUISE DYE v COMMONWEALTH BANK OF AUSTRALIA and BARBARA CHAPMAN
File numbers: NSD 1165 of 2008 NSD 1526 of 2010
Judge: BUCHANAN J
Date of judgment: 16 March 2012
Catchwords: CONTRACTS – employment contract – implied term of mutual trust and confidence and/or good faith discussed – incorporation of employer’s policies and procedures discussed – whether employment of employee via a subsidiary company was a sham
DEFAMATION – qualified privilege – reply to attack
HUMAN RIGHTS – discrimination – allegations of sexual harassment – jurisdiction of the Federal Court – some alleged conduct occurred in New Zealand – whether Sex Discrimination Act 1984 (Cth) has extraterritorial effect – vicarious liability – workplace participant
TORTS – injurious falsehood – whether damage to trade or business of an employee
Legislation: Defamation Act 2005 (NSW) s 8 Disability Discrimination Act 1992 (Cth) ss 4, 5, 15 Evidence Act 1995 (Cth) s 142 Fair Trading Act 1987 (NSW) ss 42, 46 Fair Work Act 2009 (Cth) Limitation Act 1969 (NSW) ss 14B, 56A Sex Discrimination Act 1984 (Cth) ss 5, 28A, 28B, 94, 106 Trade Practices Act 1974 (Cth) ss 52, 53B Workplace Relations Act 1996 (Cth) s 650
Cases cited: Ballina Shire Council v Ringland (1994) 33 NSWLR 680 B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings
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(1977) 180 CLR 266 Brannigan v Commonwealth of Australia (2000) 110 FCR 566 Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 Cicciarelli v Qantas Airways Ltd [2012] FCA 56 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176 Finance Sector Union of Australia v Commonwealth Bank of Australia [2003] FCA 435 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158 Gillies v Downer EDI Ltd [2011] NSWSC 1055 Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903; 168 IR 375 McDonald v State of South Australia [2008] SASC 134 Modbury Triangle v ANZIL (2000) 205 CLR 254 Palmer Bruyn and Parker Pty Ltd v Parsons (2001) 208 CLR 388 Penton v Calwell (1945) 70 CLR 219 Roberts v Bass (2002) 212 CLR 1 Rogan-Gardiner v Woolworths Ltd [2010] WASC 290 State of South Australia v McDonald (2009) 104 SASR 344; [2009] SASC 219 State of New South Wales v Lepore (2003) 212 CLR 511 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; (2011) 279 ALR 183 Van Efferen v CMA Corporation Limited [2009] FCA 597; 183 IR 319 Vijayakumar v Qantas Airways Ltd [2009] FCA 1121
Dates of hearing: 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 28, 29, 30, 31 March, 4, 5, 6, 7, 11, 12, 13, 18, 19, 20, 21, 27, 28 April, 9, 10, 11, 12, 16, 17, 18, 19, 23, 24 May, 18, 19, 20, 21, 25, 26, 27, 28 July, 1, 2, 3, 8, 9, 10, 11, 15, 16, 17, 18, 29, 30, 31 August, 1, 26, 27, 28, 29 September, 4, 5, 6, 18, 19, 20, 31 October, 1, 2, 3, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 28, 29, 30 November, 1, 5, 6, 7, 8 December 2011
Place: Sydney
Division: GENERAL DIVISION
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Category: Catchwords
Number of paragraphs: 744
Counsel for the Applicant: Mr PE King, Mr R Rasmussen, Ms L Evans
Solicitor for the Applicant: McKells Solicitors
Counsel for the Mr P Gray SC, Mr M Richardson Respondents:
Solicitor for the Respondents Freehills (NSD 1165 of 2008):
Solicitor for the Respondents Clayton Utz (NSD 1526 of 2010):
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1165 of 2008
BETWEEN: VIVIENNE LOUISE DYE Applicant
AND: COMMONWEALTH SECURITIES LIMITED First Respondent
RALPH NORRIS Second Respondent
MICHAEL BLOMFIELD Third Respondent
JUDGE: BUCHANAN J DATE OF ORDER: 16 MARCH 2012 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The proceeding commenced by application filed in this Court on 24 July 2008 is dismissed.
2. Except as provided by any prior order, the applicant shall pay the respondents’ costs of and in connection with the proceeding, such costs to be taxed if not agreed.
THE COURT DIRECTS THAT:
3. Any further application concerning costs shall be filed and served within 14 days of this judgment, supported by adequate written submissions.
4. Written submissions opposing any such application must be filed and served within a further 14 days.
5. A written reply may be filed and served within a further seven days.
6. Any further application concerning costs will be dealt with thereafter on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1526 of 2010
BETWEEN: VIVIENNE LOUISE DYE Applicant
AND: COMMONWEALTH BANK OF AUSTRALIA First Respondent
BARBARA CHAPMAN Second Respondent
JUDGE: BUCHANAN J DATE OF ORDER: 16 MARCH 2012 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The proceeding commenced by statement of claim filed in the Supreme Court of New South Wales on 15 April 2009 is dismissed.
2. Except as provided by any prior order, the applicant shall pay the respondents’ costs of and in connection with the proceeding, such costs to be taxed if not agreed.
THE COURT DIRECTS THAT:
3. Any further application concerning costs shall be filed and served within 14 days of this judgment, supported by adequate written submissions.
4. Written submissions opposing any such application must be filed and served within a further 14 days.
5. A written reply may be filed and served within a further seven days.
6. Any further application concerning costs will be dealt with thereafter on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1165 of 2008
BETWEEN: VIVIENNE LOUISE DYE Applicant
AND: COMMONWEALTH SECURITIES LIMITED First Respondent
RALPH NORRIS Second Respondent
MICHAEL BLOMFIELD Third Respondent
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1526 of 2010
BETWEEN: VIVIENNE LOUISE DYE Applicant
AND: COMMONWEALTH BANK OF AUSTRALIA First Respondent
BARBARA CHAPMAN Second Respondent
JUDGE: BUCHANAN J DATE: 16 MARCH 2012 PLACE: SYDNEY
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TABLE OF CONTENTS
INTRODUCTION...... [1] Broad employment outline ...... [4] The two proceedings ...... [17] Brief introduction to the sexual harassment allegations ...... [26] ASSESSMENT OF THE EVIDENCE ...... [35] The nature and weight of different forms of evidence ...... [35] Credit ...... [49] Ms Dye’s Credit ...... [51] The applicant’s mother – Mrs Vicki Dye ...... [60] Respondents’ witnesses ...... [64] THE COURSE OF MS DYE’S EMPLOYMENT ...... [71] CommSec as employer ...... [78] Reporting to Ms Bradbury ...... [88] Going to work with Mr Patterson ...... [126] Events in New Zealand ...... [151] Initial contact with Mr Blomfield ...... [177] Events of 26 – 30 June 2006 ...... [193] Some further encounters with Mr Blomfield ...... [218] Professional and social contact with Mr Patterson after 30 June 2006 ...... [222] Reporting to Ms Bayer-Rosmarin ...... [238] Going to work in Local Business Banking ...... [243] Sick Leave and Workers Compensation ...... [317] 2006/2007 Performance Review ...... [336] Suggested demotion ...... [342] Mr Morrison’s engagement ...... [342] Ms Dye’s duties ...... [344] Exclusion from work events ...... [352]
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Review of staff requirements in Local Business Banking ...... [353] Managing the medical certificates ...... [358] Payment of bonus ...... [365] Alleged breach of confidentiality and advice of redundancy ...... [366] Termination of employment ...... [375] An allegation of contrived redundancy ...... [382] Investigation by Mr Matthews ...... [387] PARTICULAR ALLEGATIONS OF SEXUAL HARASSMENT...... [401] Ms Dye’s various written statements ...... [402] 13 April 2006 (Establishment Bar and afterwards) ...... [423] 1 June 2006 (dinner at a Chinese restaurant and afterwards) ...... [435] 9 June 2006 (Ms Dye’s apartment) ...... [443] 12 June 2006 (watching the World Cup Soccer match) ...... [462] 13 June 2006 (Ms Dye’s apartment) ...... [468] 15 June 2006 (Le Chifley and afterwards) ...... [475] 16 June 2006 (Hyatt Hotel and afterwards ...... ) [499] 22 June 2006 (Auckland, New Zealand) ...... [504] 12 July 2006 (encounter with Mr Blomfield in a lift) ...... [508] 8 August 2006 (Westin Hotel and afterwards) ...... [509] 13 April 2007 (Mr Patterson’s house) ...... [526] Conclusion ...... [540] MEDIA ATTENTION ...... [541] CAUSES OF ACTION ...... [573] The pleadings in outline ...... [573] Claims in contract ...... [598] Breach of implied terms of contract ...... [598] Breach of express terms of contract ...... [616] Damages in contract ...... [627] The Sex Discrimination Act ...... [628] Sexual harassment ...... [629]
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Sex Discrimination ...... [638] Victimisation ...... [640] Disability Discrimination...... [647] Workplace Relations Act ...... [652] Trade Practices Act ...... [653] Fair Trading Act ...... [658] Injurious falsehood ...... [659] Injurious falsehood – CommSec ...... [659] Injurious falsehood – Mr Norris ...... [674] Injurious falsehood – Mr Blomfield ...... [677] Defamation ...... [684] Defamatory meaning ...... [685] Truth ...... [702] Privileged occasion ...... [703] Reply to attack ...... [712] Malice ...... [718] DAMAGES ...... [719] Compensation for sexual harassment ...... [723] Damages or compensation for injury ...... [724] Damages for economic loss ...... [735] Loss of reputation ...... [739] Conclusion on damages ...... [741] COSTS ...... [742] A CONCLUDING OBSERVATION ...... [744]
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REASONS FOR JUDGMENT
INTRODUCTION
1 From March 2005 to November 2007 the applicant (Ms Dye) was an employee of Commonwealth Securities Limited (“CommSec”) working in the service of the Commonwealth Bank of Australia (“CBA”). I will deal later with the nature of this arrangement. I shall often refer to “the bank” to describe the overall organisation in which Ms Dye was employed.
2 In mid April 2008, in an incandescent blaze of salacious publicity, daily newspapers in Sydney, Melbourne and Brisbane published on their pages and/or on the internet allegations by Ms Dye that she had been sexually harassed by two senior bank officers, Mr Michael Blomfield and Mr Angus Patterson. Almost immediately the bank responded publicly that such allegations as had been raised with it by Ms Dye had been fully investigated, that the bank was satisfied that the allegations were unfounded and they had only been made by her when her work performance had been declared unsatisfactory. After a long and unnecessary case in which Ms Dye made the same (and worse) allegations, I have concluded that Ms Dye’s allegations which were published in the media in 2008 and those which were made in the proceedings in this Court were in substance false.
3 Some months before the allegations were published Ms Dye’s employment with CommSec had come to an end. Spinning like satellites around the central allegations of sexual harassment (and worse) in the present case were a variety of subsidiary contentions, both factual and legal, which were intended to grasp at some form of financial relief for the loss of Ms Dye’s employment with CommSec and the alleged loss of her reputation as a result of the bank’s public response to the allegations published in the media. The causes of action, which must be considered in this case, concern sexual harassment, discrimination on the grounds of sex, disability discrimination, victimisation, breach of contract, breach of industrial legislation, misleading and deceptive conduct, injurious falsehood and defamation. The causes of action Ms Dye chose to advance are each without any factual foundation or legal substance. They will each be rejected.
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Broad employment outline
4 Ms Dye was employed by CommSec, working in the overall service of CBA, from 7 March 2005 until 22 November 2007, a period of less than three years. Of that period, Ms Dye was at work for only about two years. She then spent about seven months on sick leave. Eventually her position was made redundant. Having regard to that circumstance, and to the questions which arose about Ms Dye’s work performance, I reject any suggestion at the outset that Ms Dye’s employment with CommSec was of a kind, or duration, which could provide a basis for any reasonable or legitimate expectation of indefinite or even particularly long term employment. Ms Dye, for her own part, showed no particular commitment to long term employment with CommSec or the bank, unsuccessfully seeking employment elsewhere during this period.
5 I shall refer later to the seven level management structure, which was in place throughout the bank’s operations, including CommSec. For the whole of her employment Ms Dye was employed at the same level within the CBA and CommSec structure – level 2. She reported directly to four different managers according to the bank’s reporting structure. First, Ms Dye was recruited to work for, and reported to, Ms Nicola Bradbury (level 4). In early May 2006 following a re-organisation of responsibilities (when Ms Bradbury went on leave, before Ms Bradbury’s position became redundant) Ms Dye transferred to the supervision of, and reported directly to, Mr Patterson (level 4). On about 5 September 2006, following another re-organisation of responsibilities (which affected Mr Patterson), Ms Dye transferred to the supervision of, and reported to, Ms Kelly Bayer-Rosmarin (level 4). In November 2006, Ms Dye obtained a position as a business analyst (level 2) reporting to Mr Anand (Arnie) Selvarajah (level 4) in the Mid-Eastern Australia division of Local Business Banking (“LBB Mid-East”) an operating division of the bank under the leadership of Mr Blomfield (level 5). That was Ms Dye’s nominal position until 9 November 2007, when her position was declared redundant, although she had made no contribution to it for almost the preceding eight months.
6 Assessment of Ms Dye’s work performance during her employment was not universally favourable. Neither was it universally unfavourable. Mr Patterson regarded her efforts as consistently “exceeding expectations”. Ms Bradbury and Mr Selvarajah came fairly quickly to a different view. Ms Bayer-Rosmarin had no occasion to deal with the matter in any formal way in the short period in which Ms Dye reported to her.
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7 Ms Dye appeared to have particular problems working with other women. Over a period of time a picture developed, at least from the reports which were made to her managers (and others in the bank), that she tended to be high-handed and dismissive of the efforts of others. She was universally regarded as ambitious but not universally regarded as co-operative.
8 During her period reporting to Ms Bradbury difficulties of this kind developed to a point where Ms Bradbury thought it necessary to speak with Ms Dye about them. Ms Dye took it badly. At the same time, Ms Bradbury sought ways to assist Ms Dye in gaining some insights into her own behaviour. Ms Dye seems to have misunderstood the reason for this assistance and again reacted badly to observations which emerged from others which did not correspond to her own view of her capacities and character. These matters, for reasons to be explained, were not the subject of any ultimate formal record but they emerged in the evidence in response to criticisms of Ms Bradbury and in response to Ms Dye’s own assessment of her work performance during that period.
9 By contrast, Ms Dye appears to have enjoyed a generally fruitful professional and personal relationship with Mr Patterson apart from one occasion which arose from a disagreement during a work trip to New Zealand. That matter was, shortly thereafter, fully and amicably resolved and for the rest of their period working together there appeared to have been no problems. Nevertheless, Ms Dye did not enjoy a particularly cordial relationship with others who reported to Mr Patterson, other women in particular. 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.
10 Ms Bayer-Rosmarin was Ms Dye’s manager for a period of less than two months. She was not required to make any formal assessment of her work. The evidence does not suggest any particular issues between them although there is some reason to believe that Ms Dye became distressed when first she did not receive elevation to level 3 (as she suggested to Ms Bayer-Rosmarin she might) and she was then subject to a requirement to report through another member of her own team. Those events corresponded with some evidence that Ms Dye sought assistance for feelings of anxiety concerning her employment.
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11 Ms Dye’s period working in LBB Mid-East, reporting to Mr Selvarajah, was complicated in part by what appears to have been her desire for greater attention from Mr Blomfield. In addition, difficulties soon emerged concerning her communication and relationships with others. Particular difficulties appear to have arisen with two women reporting directly to Mr Blomfield. They each reported to Mr Blomfield that Ms Dye was difficult to deal with. Ms Dye for her part regarded them as cold towards her.
12 Soon after she commenced in LBB Mid-East, Ms Dye began to draw Mr Blomfield’s attention to her unhappiness and to seek more personal attention from him. Within a short time Ms Dye’s sense of frustration that Mr Blomfield was ignoring her got the better of her and about one month after commencing in LBB Mid-East she sent a very aggressive text message to Mr Blomfield during a work function. This incident was the trigger for direct counselling by Mr Selvarajah in December 2006. Things seemed to improve and then again matters of concern arose. There was a further meeting with Mr Selvarajah on 1 February 2007. Mr Selvarajah made it clear that more formal steps were possible, and perhaps in prospect. Ms Dye reacted by complaining to Mr Blomfield about Mr Selvarajah and Mr Selvarajah’s management of her. Mr Blomfield thought it inappropriate to deal with the issue himself and a review was established to examine Ms Dye’s complaints. They did not involve any complaints against Mr Blomfield. Indeed, Ms Dye’s purpose was to see Mr Selvarajah replaced as her direct manager by Mr Blomfield himself. The outcome of the review was not favourable to Ms Dye. This corresponded with further evidence of distress on her part. She commenced to see a psychiatrist. In the meantime she went on sick leave and thereby in a practical sense (and probably intentionally) avoided any escalation of the matter from Mr Selvarajah. She did not return to work.
13 Ms Dye went on sick leave on 15 March 2007 (attributed to stress). Ms Dye remained on sick leave until almost the end of her employment in November 2007. Early in that period she consulted a psychiatrist but was quickly declared free of psychological or psychiatric injury or manifestation. Nevertheless, Ms Dye did not return to work and another medical practitioner co-operated with her in an attempt later to manage a return to work in a way which suited her best. She made a claim for workers compensation. For the first time she made allegations against Mr Blomfield but these were not drawn to his attention for direct response. The claims Ms Dye then made were investigated and rejected. Eventually the salary available to her on sick leave and for any outstanding annual leave was exhausted
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and she entered a period of leave without pay. She attempted, with the assistance of her general practitioner and the certificates he wrote, to persuade the bank that she should return to work in a position with no contact with Mr Selvarajah or Mr Blomfield. Such a position could not be found. Finally she had her general practitioner certify her fit for work without restriction.
14 By this time, and independently, a review of staffing costs in LBB had caused a decision to be taken that Ms Dye’s business analyst position in LBB Mid-East was not needed and should be declared redundant. Ms Dye was returned to full pay but in early November 2007 was advised that her position had been declared redundant. Ms Dye’s position of business analyst had remained unfilled during the whole of her extended absence. Upon the declaration of redundancy there was a contractual obligation upon CommSec to search for another position and CommSec was required to consult with Ms Dye about a position if one was found. Otherwise CommSec had an express contractual right to terminate Ms Dye’s employment on payment of identified entitlements which were in due course paid. Efforts were made to find Ms Dye another position. No position was identified in the short time thereafter before Ms Dye chose to see her employment terminated. Notwithstanding the efforts being made to identify an alternative position for Ms Dye, due to an administrative error, her final pay was made up and sent to her. When the error was identified an offer was made to reverse it. The offer was repeated. The offer was not acted upon by Ms Dye who, at this point, effectively acquiesced in the erroneous termination of her employment. Apparently, she preferred to accept the situation and pursue her remedies elsewhere.
15 It is important to note, therefore, that concern about Ms Dye’s work performance was not the reason for the cessation of her employment. That basic and simple fact has a devastating consequence for some of the present causes of action, even if their other elements had been established.
16 Further accusations against Mr Blomfield were made by Ms Dye in late October 2007. Those accusations were also investigated and rejected. Accusations against Mr Patterson (apart from matters arising from the incident in June 2006 in New Zealand) were not seriously advanced until after Ms Dye’s employment had ceased.
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The two proceedings
17 After her employment came to an end, Ms Dye made claims to the then 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 went to conciliation but a settlement was not reached.
18 Shortly thereafter, on Monday 14 April 2008, The Sydney Morning Herald newspaper in Sydney (“the SMH”) published a report of allegations of sexual harassment against Mr Blomfield. The same day The Age newspaper in Melbourne published the same report of allegations against Mr Blomfield and also referred to allegations against Mr Patterson. On 16 and 17 April 2008, The Daily Telegraph newspaper in Sydney published more detailed articles. It also made extensive specific allegations against both Mr Blomfield and Mr Patterson available on its website. At around that time other newspaper articles also appeared to which I will refer in due course.
19 The articles were each based on a 181 page document provided to two journalists, Ms Vanda Carson (SMH and The Age) and Mr Heath Aston (The Daily Telegraph) by Ms Dye’s industrial representative, Mr Peter Rochfort. I will refer to this document hereafter as “the April 2008 published allegations”. It was largely (although not entirely) an amalgam of two documents provided to HREOC in support of Ms Dye’s complaint to it. It was not provided to HREOC and, I am satisfied, came into its own form after those two documents had been independently and earlier provided to HREOC. Nevertheless, with limited qualifications, it represented what Ms Dye had alleged to HREOC about a very wide range of issues arising out of her employment, including the suggestion she had been sexually harassed by Mr Blomfield and sexually harassed (and assaulted) by Mr Patterson.
20 I am satisfied that the articles in the SMH, The Age and The Daily Telegraph which appeared on those days were the result of a strategy devised by Ms Dye and her advisers. At the time the articles appeared, Mr Ralph Norris and Ms Barbara Chapman (the two respondents not so far mentioned) were the CEO and a Group Executive respectively of CBA. The bank responded swiftly to the articles, through Mr Norris and Ms Chapman,
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telling the newspapers and staff of both CBA and CommSec that appropriate investigations had been carried out and 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 which were published after her work performance was declared unsatisfactory. Those responses were substantially true. Insofar as Ms Dye had raised allegations of the nature published in the articles they were, in the context in which they were raised, investigated and rejected. Such allegations as had been made by Ms Dye were made as part of her efforts to answer or deflect concerns about her work performance.
21 The bank, in addition, told the newspapers and its staff (and those of CommSec) that it would support Mr Blomfield and Mr Patterson in any action they might take to clear their names. Mr Blomfield took up the offer. The SMH and The Age apologised. The Daily Telegraph did not. Mr Blomfield sued News Limited, the publisher of The Daily Telegraph, in the Supreme Court of New South Wales on each of the articles published on 16 and 17 April 2008. I will refer to those proceedings as “the Blomfield proceedings” as they were referred to in the proceedings in this Court. News Limited claimed the allegations in the articles were true and relied on the truth of the allegations as a defence to Mr Blomfield’s action against it. During the Blomfield proceedings in September 2009, while Ms Dye was in cross-examination, News Limited withdrew its defence and the proceedings settled in Mr Blomfield’s favour for an undisclosed sum. Withdrawal of the defence has no probative significance in the present case, which must be decided on the evidence before this Court.
22 Meanwhile, Ms Dye had on 24 July 2008 commenced proceedings in this Court against CommSec alleging sexual harassment and other causes of action. I will refer to these proceedings as “the Federal Court proceedings”. Later, constrained to act within a statutory time limit of 12 months after publication, on 15 April 2009 she commenced defamation proceedings in the Supreme Court of NSW against CBA and Ms Chapman concerning the statements made by Ms Chapman to bank staff and others, which I will refer to as “the defamation proceedings”. Still later, Ms Dye was given leave to join Mr Norris to the Federal Court proceedings against CommSec and to allege injurious falsehood by him and CommSec arising from statements made by him to the newspapers. Ms Dye was also given leave to join Mr Blomfield to the Federal Court proceedings and to allege injurious falsehood and other additional matters against him.
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23 The defamation proceedings commenced in the Supreme Court of NSW in 2009 were later transferred to this Court. Ultimately, both proceedings and all causes of action were heard together.
24 None of the causes of action succeed. All fail on the facts. Many are misconceived. None, except the allegations of sexual harassment, discrimination and victimisation if proved, would have provided a foundation for damages. Essentially that is so for two reasons: first, the reasons why Ms Dye’s employment came to an end are not attributable to the matters raised by any of the causes of action; secondly, any difficulty Ms Dye might have in obtaining future employment and any damage to her reputation is, on the evidence in her own case, the result of the publicity of her own allegations in April 2008 which, I am satisfied, was arranged on her behalf and with her knowledge, agreement and active participation. Those two matters combine to defeat any claim for damages based on loss of employhment, possible loss of future employment or any alleged loss of reputation.
25 The only possible avenue for a financial solace lay in the proceedings under the Sex Discrimination Act 1984 (Cth) (“the SDA”), which were based on claims of sexual harassment, discrimination on the grounds of sex and victimisation. Of those claims, it was the claim of sexual harassment which raised the most serious issues and which, if true, might have provided a basis for some measure of compensation.
Brief introduction to the sexual harassment allegations
26 Over a period of time the allegations made by Ms Dye have been added to and modified. That process commenced before publication of her allegations in April 2008. The allegations that were then published in the newspapers had been constructed, rewritten 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 Federal Court proceedings 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. Mr Patterson was not told by the NSW Police that accusations of criminal conduct had been made against him to the police. No serious investigation ensued. As will be seen, I have concluded that the allegations against Mr Patterson in Ms Dye’s witness statement to the NSW Police are false.
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27 At the trial, the allegations of sexual harassment against Mr Patterson and Mr Blomfield were concentrated upon the following dates and alleged behaviour:
13 April 2006 at Establishment Bar, Sydney – unwelcome sexual conduct by Mr Patterson in which he put inappropriate and intimate questions to Ms Dye.
9 June 2006 in Ms Dye’s apartment – Mr Patterson physically assaulted Ms Dye and forcibly digitally penetrated Ms Dye, anally and vaginally.
13 June 2006 in Ms Dye’s apartment – Mr Patterson again physically assaulted Ms Dye with a view to obtaining sexual gratification.
15 June 2006 at Le Chifley bar in Sydney and afterwards – Mr Blomfield engaged in unwanted sexual conduct towards Ms Dye including an implicit request for sex.
16 June 2006 – Mr Patterson made further explicit requests for sexual favours and physically assaulted and attempted to kiss Ms Dye in an office lift against her will.
22 June 2006 in New Zealand – Mr Patterson advanced a sexual proposition.
12 July 2006 – Mr Blomfield made a sexual overture to Ms Dye in a lift.
8 August 2006 at the Westin Hotel, Sydney – Mr Blomfield engaged in unwanted sexual conduct towards Ms Dye.
13 April 2007 in Mr Patterson’s home – Mr Patterson again physically assaulted Ms Dye with a view to obtaining sexual gratification.
28 Having regard to the nature of the allegations, the gravity of the damage caused by them and to the fact that they have no responsibility for the damage they have suffered, each of Mr Blomfield and Mr Patterson is entitled to have it made plain that my conclusion is that the allegations against them were false. They should not have been made. They should not have been pursued.
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29 In the light of my examination of the evidence, and my conclusions about it, I see no alternative to the conclusion that the evidence given by Ms Dye in this Court about those matters was, in important and very many respects, knowingly false.
30 In order to make sense of the complicated way Ms Dye’s case was advanced it will be necessary to place the particular allegations against Mr Blomfield and Mr Patterson in the wider context of Ms Dye’s overall employment. Those 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). How those developments occurred will take some time to explain. I am satisfied that the allegations which were made in each case were without any substance and, with respect to some matters, were completely fabricated. If any of the alleged incidents occurred, they would have been reflected in quite different behaviour on Ms Dye’s part around the dates in question. I will give two very simple examples as an illustration of something to be later explained in more detail. I do not accept that Ms Dye would have accompanied Mr Patterson on a work trip to New Zealand in late June 2006 and dined with him alone as she did there 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. Secondly, I shall later explain that on 4 May 2007 Ms Dye invited Mr Patterson to her apartment on a Friday afternoon and asked him to bring a bottle of red wine with him which they shared together in the isolation and intimacy of her apartment when he arrived. I do not accept that she would have done that if, as she alleged, he had again assaulted her at his home three weeks earlier on 13 April 2007.
31 These are, for the moment, only two examples of the importance of assessing the allegations of sexual harassment, with their accompanying allegations of criminal assault on the part of Mr Patterson, in an appropriate context.
32 The allegations against Mr Blomfield are factually less serious (in the sense that they do not allege criminal conduct) and the context is more complicated, but again a proper appreciation of the context, as well as an assessment of the allegations themselves, will yield only 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
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Ms Dye, who resisted and refrained. It was Ms Dye’s disappointment with Mr Blomfield’s lack of attention to her, personally and professionally, which triggered events which culminated in an assessment by her manager, Mr Selvarajah, critical of her work performance. This was the prelude to an extended absence on sick leave which provided the occasion for the attempted manipulation by Ms Dye of the circumstances in which she could return to work. Those matters ultimately had no direct bearing upon her employment or its termination. Termination of Ms Dye’s employment, when it occurred, was amongst other things for the reason that her position had become redundant. It was also for the reason that she accepted that her employment would cease.
33 I am satisfied that there is 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. The fracturing of those relationships was, in each case, the result of Ms Dye’s own actions for which Mr Blomfield and Mr Patterson are each blameless. No case of sexual harassment, of even a minor kind, has been made out in these proceedings.
34 In short, the case for any kind of compensation or damages which did not depend on allegations of sexual harassment was futile. The case for compensation for sexual harassment was based on falsehood.
ASSESSMENT OF THE EVIDENCE
The nature and weight of different forms of evidence
35 Before the Federal Court proceedings were transferred to my docket, an order was made by a judge of the Court that lay evidence in the proceedings was to be given orally rather than on affidavit. That was the procedure also intended for the defamation proceedings, before they were transferred to this Court. The result was that evidence of conduct, or conversations, upon which any party wished to rely, should have been the subject of direct oral evidence. However, there are other ways in which evidence may also be provided in such circumstances and it is necessary at the outset to say something about that general topic.
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36 The Evidence Act 1995 (Cth) (“the Evidence Act”) uses the term “representations” to refer to assertions of fact. Representations, which are admitted as evidence about some matter, may be oral or written. Oral representations may be evidence given directly in a case about some particular matter of fact, or may be things said to other people outside court. In the second possibility they may have been things said at the time that something happened, at a later time about something which happened or, sometimes, before something happened (e.g. a threat). There are technical rules governing what oral (and written) statements may be admitted into evidence but I need not discuss them here.
37 Written representations also take various forms. Sometimes direct evidence in a case is allowed to be given in writing in the form of an affidavit or a witness statement.
38 In the present case, as I have mentioned, an order was made in the Federal Court proceedings, well before the trial started, that evidence should be given orally. The arrangements for the defamation proceedings fitted neatly enough with this requirement. An exception was made for expert reports. A possibility arose later of short, uncontentious, affidavit evidence also being admitted. Generally speaking, all representations admitted as direct evidence of fact in the proceedings were given orally at the trial. However, out of court written representations of fact were also admitted as evidence. Many were letters, emails, file notes or other contemporaneous documents. Some were admitted as “business records”. Once admitted into evidence, the representations of fact contained in such documents stood as some evidence of the facts asserted in them, although it was still necessary to consider the reliability and weight of any such document. Even documents created contemporaneously with an event vary in reliability, and in honesty, and may not be an accurate or honest recording of the factual position at that time.
39 Another form of written representation, in the case of a number of witnesses, consisted of written records of assertions made by the witness of their version of events about particular matters which had been recorded in the form of a statement, diary note etc, where the record was intended to state the position of the witness in a more formal way and for future reference about those events if necessary. Some examples are statements made during investigations carried out by, or on behalf of, the bank about various allegations made progressively by Ms Dye from early 2007.
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40 A similar, but separate, category is various statements and written versions of events, made by Ms Dye herself, about which I shall say something more shortly. A further category is the record of evidence given orally by Ms Dye in the Blomfield proceedings in the Supreme Court of NSW when Mr Blomfield sued News Limited over the articles on 16 and 17 April 2008.
41 All of this body of written evidence also needed to be assessed for its reliability and weight. A statement made knowingly about a factual matter may seem to have greater or lesser reliability, and greater or lesser weight, if made without any appreciation that it will be used later, or vice versa. It may be more reliable if deliberately, rather than casually, made. It all depends on the circumstances. It will assist an appreciation of the discussion which follows if I make some general points now.
42 In the case of contemporaneous records in the form of emails etc constituting ordinary business communications, I generally have little reservation about their reliability with one exception. That exception concerns the conclusion to which I have been forced by the whole of the evidence in the proceedings that Ms Dye frequently misstated the factual position, even in contemporaneous communications with her business colleagues. Otherwise, I have no reason to doubt the general reliability of the position which arises from the contemporaneous documents which constitute communications in the ordinary course of business. Indeed those documents are a valuable record against which to test witnesses’ recollections and their later versions of events.
43 For the purpose of the present case Ms Dye’s assertions of fact may be divided into four broad categories: assertions 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; evidence given orally to the Supreme Court of NSW in the Blomfield proceedings; and evidence given orally in the present proceedings. I shall say something generally about those categories in that order.
44 As the evidence unfolded, I developed reservations about factual assertions made by Ms Dye, even to her work colleagues. I shall mention them in due course where they are relevant. Ms Dye’s interaction with other people, and the evident tone of that interaction, is
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however a relevant context in which to assess the reliability of later assertions about her own conduct and that of others. Ms Dye seems to have a view of her own personality, attributes and capacities which is often different from that of other people. I found over the long course of the trial that her capacity for objective self-assessment is quite limited and that her preparedness to disregard the capacities and interests of others when it suits her to do so makes her an unreliable observer and reporter of events around her and those concerning herself. That was apparent to me even in communications with her colleagues during Ms Dye’s employment with CommSec.
45 Ms Dye’s written statements made in support of some claims are highly unreliable for a number of reasons. First, they suffer from the defect I have already mentioned. Ms Dye seems either incapable of taking, or unwilling to take, adequate account of any position or interest other than her own. Secondly, as I shall discuss in greater detail in relation to some particular events, Ms Dye’s written account of matters has, over the years, been progressively altered, re-recorded, edited, polished, embellished and even substantially changed as though it was a novel. She has added events, omitted events and changed the dates on which events occurred in a bewildering fashion. She has rewritten a version of some events on a number of occasions so that their very character and significance altered completely. Things like that do not happen in the real world, or represent an honest recording of the real world. I was driven in the end to suspect that the rewriting reflected altered objectives and gave effect to a changed focus. I was also driven to suspect that, in that process, Ms Dye was fairly indifferent to the truth, provided she thought she could achieve the objective in mind. Be all that as it may, whether or not my suspicion is valid, the way in which this written history has developed and changed makes it highly suspect. Significant parts of it, I am satisfied, are simply false.
46 So far as Ms Dye’s evidence for the Supreme Court of NSW in the Blomfield proceedings is concerned, there is no reason for me to make specific findings about that evidence. Its chief use in cross-examination was to challenge evidence given orally at the present trial and I shall refer to it where necessary in that context.
47 I will shortly deal in more detail with the credit of various witnesses but it is convenient at this point, having made observations about Ms Dye’s earlier out of court statements, to make some broad remarks about her oral evidence in order to complete the
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general picture about her evidence. I found Ms Dye’s oral evidence at the trial to be highly unreliable. I formed the clear view on many occasions that she 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 she had chosen, to contradict evidence given before the Supreme Court of NSW in the Blomfield proceedings or evidence given earlier in the present proceedings, sometimes only a few pages earlier in the transcript. I was forced to the conclusion that she would say whatever she thought suited her purposes at the time. Where her evidence is contradicted by another witness I would not, without more, prefer Ms Dye’s evidence. Where her evidence lacked corroboration I would not, on any matter vital to her case, regard it as sufficient.
48 It has been necessary to consider, and in many cases resolve, competing versions concerning particular events, conversations and exchanges. It will become clear, when I discuss particular factual matters, when I have felt it necessary to refer to or resolve any contest or difference of recollection. Inevitably, preferences for some evidence over other evidence (written and/or oral) has sometimes been necessary and has played a part in reaching a view about the factual position, but it would be impossible to provide a full discussion of every instance in which that has occurred. The description of factual events and circumstances and their significance that is given later in this judgment, is the one which seems to me to be the best view arising from the evidence as a whole, as well as the evidence about particular matters.
Credit
49 Judges are often counselled not to make unnecessary findings or observations adverse to the credit of witnesses and to bear in mind the desirability of allowing witnesses and parties to retain their dignity so far as that is possible. I am also acutely aware of judicial reminders that it can be very 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.
50 It was, however, necessary in this case to make an assessment of the credit and reliability of some, but not all, of the witnesses. Where the evidence is of little importance to
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an assessment of the factual position I will say nothing about the credit of a particular witness. However, some findings about credit are, in the present case, unable to be avoided.
Ms Dye’s Credit
51 In the present proceedings, 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. I must make that assessment doing the best that I can with the evidence admitted at the trial and my assessment of Ms Dye in the witness box.
52 Ms Dye impressed me very unfavourably as a witness. It will be necessary in due course to give explanations for findings about particular issues. Those explanations will refer, in part, to the inconsistencies and contradictions within Ms Dye’s evidence in the present case, between that evidence and earlier statements made by her about the same issues, and between her version of various events and that supplied by other witnesses or recorded by contemporaneous documents. However, some general comments may also be made.
53 There were very many instances where Ms Dye’s evidence in the present proceedings 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 which were also dealt with in her oral evidence at the trial. The progressive recasting of the allegations in these various documents cannot be satisfactorily explained by the progressive recollection and recording of actual events. The embellishments, alterations and other additions do not permit so charitable an explanation. Nor surprisingly, Ms Dye was invited in her evidence in the present case to attempt some reconciliation or explanation of the changes in her stated recollections. Her attempt to provide it was largely unsuccessful. In very many instances, her version of events in earlier documents (regrettably – “self-serving” is often the only appropriate description) was decisively contradicted by contemporaneous records. The issues about which this happened ranged from the mundane to the more important. Sometimes the contradiction came from Ms Dye’s own words which were recorded in emails sent by her to workmates, colleagues or superiors.
54 The evidence which Ms Dye gave directly in the proceedings was equally unreliable. Very early in the case, during Ms Dye’s evidence in chief, before she had been challenged in
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cross-examination or any contrary evidence had been given, I noted a disturbing feature about her evidence and its reliability. On a number of occasions Ms Dye gave evidence about matters which was thereafter (sometimes 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. The difference between the impression left by Ms Dye’s oral evidence and that emerging from a balanced and neutral evaluation of the documents was occasionally striking. It was not necessary then for me to attempt any evaluation of the extent to which Ms Dye attempted to give her evidence honestly, although it has been since. At those initial stages it seemed possible that Ms Dye’s oral account was affected by the passage of time, an inability to distance herself emotionally from the events (each of which would be natural enough) or by an unwillingness to put the conversations into a sensible and proper perspective. None would necessarily suggest dishonestly. Whatever the reason might have been for the discrepancies between her oral evidence and the contemporaneous record I found Ms Dye’s oral evidence, even at that very early stage of the proceedings, to be a much less sure guide than the available written record. That is by no means unusual in litigation and the observation might not have led to a conclusion that she failed to tell the truth. It was unnecessary for me to attempt an evaluation of that issue at that early stage, but my initial doubts became a conviction in due course that Ms Dye’s evidence was not only unreliable as a factual account, but actively dishonest. The signs of that unreliability were there from the outset, as soon as comparison with contemporaneous records was available.
55 Frequently, a version of events given in evidence in chief was shown to be importantly incomplete; sometimes quite misleadingly so. When challenged in cross- examination Ms Dye responded, reasonably enough on one view, that she had confined herself to the questions asked by her counsel. That attempt to deflect the issue, however, did nothing to justify the approach she took in cross-examination. I frequently formed the view that Ms Dye was not endeavouring to give evidence honestly and to the best of her recollection and ability.
56 At times it was impossible to know whether Ms Dye’s answers concealed an inability to recall what had actually happened, whether her answers were knowingly false or whether Ms Dye 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. On other occasions,
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when faced with insurmountable contradictions in her evidence, Ms Dye often found refuge in a professed lack of recollection. That may not have been an escape of convenience; in many cases it may have been true, suggesting that her earlier evidence was a fabrication or, more charitably, a reconstruction. It is probable that each of the above explanations was at work in Ms Dye’s evidence. Whatever the true explanation in individual instances, her evidence on very many issues I found to be quite unsafe as a foundation upon which to make factual findings.
57 From the beginning of Ms Dye’s cross-examination I also formed the clear impression that she was unwilling to co-operate 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. Questions which could and should have been answered with a word or a short phrase became semantic debates. Those exchanges were unnecessary. Eventually, the only explanation for this approach was that Ms Dye was simply not prepared to tell the truth in cross-examination and that she had not done so in her evidence in chief.
58 Ms Dye’s desire to embellish her accounts accompanied her oral evidence. Her answers were frequently non-responsive. On many occasions that appeared to be because she was evading the proposition to which she was asked to respond. However, frequently she added quite unnecessarily to her answers some additional assertion or allegation. Almost invariably these seemed designed to cast a slur on one or more of her former colleagues. It was impossible in the long run not to see these asides as vindictive. Unfortunately, they reflected much more adversely on their maker than on their intended objects for criticism.
59 By the end of the case (and in large part by the end of Ms Dye’s evidence) the doubts which I had formed about the reliability of Ms Dye’s evidence – indeed, my conviction that it was unreliable where not adequately corroborated – were such that the consequences for the causes of action were very significant. The position has not changed with further reflection. These reasons for judgment will explain why particular elements of each of Ms Dye’s causes of action are not made out on the evidence, with the result that none of them succeed. However, at a more general level, my conclusions about the reliability of Ms Dye’s evidence are such that in every case where she bore the burden of proof (of a matter, an element in a cause of action, or a cause of action) on the balance of probabilities (s 142 of the Evidence Act), she did not discharge the onus of proof which lay on her. In no case was I persuaded
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that it was more probable than not that the matter, element or cause had happened or was established. The fact that Ms Dye cannot discharge the burden of proof which lies on her is a reason why her case cannot succeed, but the position is ultimately much worse than that for her, as will emerge as I descend further into the detail of her allegations.
The applicant’s mother – Mrs Vicki Dye
60 I regret to say that I also found the evidence of Ms Dye’s mother, Mrs Vicki Dye, to be unreliable and generally lacking in credit. There were some matters to which she deposed which I am satisfied were quite false.
61 Over a period of some years Mrs Dye has become associated very closely with her daughter’s position and with the various versions of events as Ms Dye developed and advanced them, often checking and proof reading the various written versions of events, which changed over time. When she gave her evidence in the proceedings Mrs Dye at times seemed to have an apparently uncanny ability to recollect matters of very great detail which she alleged had been conveyed to her by her daughter at or about the time of many of the events in question in the proceedings. When Mrs Dye was required to rely upon her own recollection of matters her evidence became vague and indecisive. This was a very marked contrast from her supposed ability to recall matters which she said were conveyed to her orally by her daughter. Those matters of supposedly detailed recollection, in my view, are the product of very close familiarity and association with, and study of, the written allegations made from time to time. That circumstance would, apart from anything else, render Mrs Dye’s evidence about those matters of relatively little weight. Regrettably, that was not the only difficulty.
62 Progressively during Mrs Dye’s evidence and as her cross examination commenced and continued I first formed the view that Mrs Dye could offer no independent evidence that was not tainted by her association with the development of her daughter’s allegations. Then I was forced to the view that Mrs Dye was unwilling to tell the truth and that she had completely aligned herself with her daughter. That association extended to giving false evidence in an attempt to support her daughter’s case in the present proceedings.
63 There are some specific matters in respect of which, in my view, Mrs Dye gave deliberately untruthful evidence in order to support her daughter’s version of events, with
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which I shall deal in due course. I became satisfied that Mrs Dye was prepared to do anything that she thought would assist her daughter’s case. I do not regard her as an honest witness. I am not prepared to treat her evidence as providing any corroboration for Ms Dye’s allegations.
Respondents’ witnesses
64 Some of the conclusions I am about to state, or refer to, anticipate matters which have not yet been discussed and may appear out of place at this stage. However, it is convenient to mention them now, in this present context. A further explanation will emerge. Allowing for imperfect recollection, and the usual inconsistencies which sometimes arise as a result, I formed the view that the witnesses called by the respondents were doing their best to give truthful evidence to the best of their recollection. Universally, they were willing to give Ms Dye credit for her undoubted diligence in some areas of her work. Some had begun on very friendly terms with her. Each seemed prepared to put bitterness aside and give Ms Dye credit when it was due, even though some have seen their earlier friendship spurned by her and now find themselves attacked by her in immoderate, and sometimes quite vicious, ways.
65 Ms Bradbury, Ms Philippa Maiden, Ms Karen James, Ms Felicity Johnson and Ms Tina Puru I found to be straightforward and honest witnesses, prepared to be open and reasonable in their evidence. I accept the substance of their evidence without any qualifications. I take the same view of the evidence of Mr Alan Furlong. I have no doubt that Ms Dye received every consideration from the Human Resources (“HR”) department of the bank as she progressively advanced her various claims and that Mr Furlong and others dealt with her claims quite independently of any motivation to protect those whom she accused.
66 Mr Bernard Tanner was regarded by Ms Dye as a friend and mentor. I am happy to accept that he was. He was an evidently honest and dispassionate witness. He gave credit to Ms Dye for her work but refused to overstate her contribution. His evidence did not support her case.
67 Mr Blomfield I accept as a witness of truth. He was clearly regarded with respect and affection by those who worked for him and I have no reason to doubt that was merited. He had, before the events in question, obviously enjoyed a highly successful career at a young
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age after starting from less auspicious beginnings. I found him to be straightforward and relatively self-deprecating. I suspect he feels bitter about what has happened and he may be entitled to that reaction. His efforts to deal with Ms Dye, with which I shall later deal, may be open to a charge of naivety, but that probably does insufficient justice to his intentions which, I am satisfied, were honourable. I am satisfied he was prepared to give Ms Dye an opportunity professionally and that she abused it. I am quite satisfied he did not sexually harass Ms Dye, nor that any attention he gave her was unwelcome. The contrary was true.
68 I accept the description of counsel for the respondents of Mr Selvarajah as a dignified witness. I accept his evidence without reservation. That also has profound consequences for Ms Dye’s case in relation to a number of matters of considerable importance in the case. I am satisfied that Ms Dye’s work, and her approach to her work, was not satisfactory in many respects after she commenced reporting to Mr Selvarajah. Mr Selvarajah was not the only person to say or think that but it was he who came under the most sustained and vitriolic attack (both during Ms Dye’s employment and in the present proceedings) for having done so. I am satisfied Mr Selvarajah was not doing Mr Blomfield’s bidding, as alleged by Ms Dye, when Ms Dye commenced to report to him, when Mr Selvarajah found Ms Dye’s work unsatisfactory, when he assessed Ms Dye’s work performance formally as “needs improvement”, when he decided later that her position was not required or when he recommended that it be made redundant. I am satisfied that Ms Dye was treated with scrupulous fairness by Mr Selvarajah and, indeed, generally.
69 Mr Patterson was a good friend to Ms Dye. He was her constant, and probably uncritical, supporter. The most heinous accusations are the ones which have been made against him. He seems hurt and perhaps bewildered but, so far as I could judge, not bitter. That is a great credit to him. He freely confessed difficulty in placing particular events in their correct chronological sequence. He also had some difficulty remembering the detail of particular events. I am satisfied that was not the result of any reluctance to give honest evidence. He was placed in the most invidious position of not being aware, until years later, what Ms Dye would ultimately say about him in her progressively developed version of her accusations. I accept his denial of any wrongdoing. I am satisfied that the accusations against him were invented after Ms Dye decided to turn against him, believing his support to be of no further use to her.
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70 Ms Emma Okano was also a dignified witness whose evidence I accept without reservation. She has had to suffer the misfortune and indignity of having her personal, and sometimes intensely private, circumstances paraded by Ms Dye in her various versions of events, including at the public conduct of this trial. In order to deal adequately with the present proceedings, it is not possible to protect Ms Okano’s identity or to refrain from dealing, again publicly, with her personal circumstances. I regret that is so. Ms Okano is a Japanese citizen and now resides in Japan. She could not be forced to come to Australia to give evidence and was not obliged to give evidence at all. After some initial hesitation she agreed to give evidence by video link. Her evidence has been of considerable assistance to me as I struggled to understand, and evaluate, the foundation for the various claims made by Ms Dye in the proceedings, and earlier.
THE COURSE OF MS DYE’S EMPLOYMENT
71 In this part of the judgment I propose to track through Ms Dye’s employment with CommSec and identify some features of her working and personal relationships. There are specific events to be mentioned, to which it will be necessary to return, but it will be more useful to discuss the detail of those matters when it can be more readily appreciated where they fit in the overall context.
72 In the survey of Ms Dye’s employment which follows some things may stand out. For example, any criticism of her work, or any perceived threat to her job security, risked turning into a crisis for Ms Dye. On the other hand, the allegations of very grave (sometimes criminal) conduct now made by her were not reflected by any disturbance to daily routine, personal or professional. That is only one of the many indicia that those allegations were, and are, baseless. Another aspect is that Ms Dye’s opinion of herself, her work and her contribution appears often to have exceeded that of the people around her, sometimes by a large margin. Yet another is that a consistent criticism of Ms Dye which emerged from the evidence is that she was, to some people at least, high handed and dismissive. The contemporaneous records and the evidence of various witnesses (even the evidence of Ms Dye herself) support the view that there was an element of tension in Ms Dye’s working relationships with some of her colleagues. The material available to me suggests that not the least of the causes of this tension was the difficulty Ms Dye had in forming and then maintaining cordial and mutually respectful interpersonal relations with her colleagues. Ms
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Dye appears to have been unable to see this aspect of her own personality, complaining when people (often other women) seemed cool to her that it was because she did not fit into some workplace culture that others wished to impose on her.
73 In most instances, it is not necessary for me to attempt any independent judgment of Ms Dye’s work performance. It is sufficient to record what her colleagues and (more importantly) her superiors thought of it at the relevant time. The present proceedings are not concerned with whether Ms Dye deserved greater recognition, although I have no reason to think that she did. The proceedings are not concerned with whether Ms Dye’s supervisors were correct to question her performance, although I have no reason to think they were not. In fact, I have the impression that Ms Dye was treated very charitably for a long time and would have been shown the door in many organisations well within the three years that she remained employed by CommSec.
74 In 2005 CBA had a pyramid-like, seven tier management structure, with the Chief Executive Officer (“CEO”) at its apex. The structure applied also in CommSec. Below the CEO the management levels were:
Level 6 – Group Executive Level 5 – Executive General Manager Level 4 – General Manager Level 3 – Executive Manager Levels 2 and 1 – other specifically named positions
75 Above levels 1 and 2, a different contract of employment was used, which was known as an executive manager contract. The evidence from the respondents’ witnesses was consistently to the effect that they understood that appointment at, or promotion to, level 3 required such a contract. Ms Dye was never engaged on, or offered, such a contract.
76 Ms Dye’s pleaded case and her evidence suggested that she was told at various points that she either would be promoted to level 3, or was regarded already as at level 3. None of those assertions was made good on the evidence, which permitted only one conclusion about the level at which Ms Dye was engaged. She was engaged at level 2 and remained thereafter at level 2 for the relatively short period of her employment. She was never appointed to a
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position at level 3, nor acted in such a position, nor was regarded as working in such a position or at such a level.
77 Ms Bradbury, Mr Patterson, Ms Kelly Bayer-Rosmarin and Mr Selvarajah were the only managers which Ms Dye had during her employment with CommSec. I reject any suggestion that Ms Dye reported (within CBA’s and CommSec’s use of that concept) to persons other than those I have mentioned. The fact that she was, from time to time, with the agreement and co-operation of her manager, asked to provide assistance to others does not change that position. Furthermore, it is quite clear from Ms Dye’s contemporaneous communications that she understood these things perfectly well. Evidence that she gave in the proceedings to a contrary effect was, in my view, given to avoid inconvenience to her case.
CommSec as employer
78 Some brief discussion of the position of CommSec as employer is necessary. Ms Dye commenced employment with CommSec on Monday 7 March 2005. Mr Patterson and Mr Blomfield were employed by CBA. Counsel for Ms Dye at various times suggested that her employment by CommSec was a sham. The suggestion was to the effect that it was a ruse or device intended to quarantine CBA from responsibility for, or liability to, persons who would otherwise be its own employees. The suggestion was accompanied by submissions to the effect that a judge of this Court had so declared. None of these suggestions or submissions had any substance.
79 In the first place, the proceedings in this Court were commenced upon the pleaded foundation that CommSec was Ms Dye’s employer and was liable for the actions of Mr Blomfield, Mr Patterson and others towards her as its agents. Despite repeated amendments to the pleadings, that foundation for the proceedings against CommSec was maintained to the end of the trial. The suggestion and submission to which I have referred were therefore contradicted by the pleaded case and must be rejected for that reason alone. They are, in any event, incorrect as a matter of both fact and legal analysis.
80 CommSec, which is a wholly owned subsidiary of CBA, provided stockbroking services to customers of the bank. During 2002, CBA decided to place conduct of the business of its Premium Financial Services division (“PFS”) in the hands of CommSec. Mr
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Blomfield joined CommSec in April 1998 as head of Client Service and Internet. He was, from October 1999, the Chief Manager of CommSec’s private advisory business (a stockbroking business), from May 2000, Deputy General Manager of CommSec and from January 2002 its General Manager. He was then 31 years old. In 2002, he also took over responsibility for the PFS business when it was allocated to CommSec control by CBA. In June 2006, as I shall in due course discuss, Mr Blomfield was appointed an Executive General Manager with CBA, in charge of a division of the bank known as Local Business Banking (“LBB”).
81 When CommSec took over the conduct of PFS in 2002 it offered contracts of employment to a number of employees of CBA. The contract of employment later accepted by Ms Dye was a contract of this character. Employees of CommSec engaged in this way were to be employed on duties in a business carried on by CommSec which was, at the same time, conducted as part of the overall business carried on by the CBA group as a whole and under the ultimate direction of CBA. In Fair Work Ombudsman v Ramsey Food Processing Pty Ltd [2011] FCA 1176, I discussed (at [75]–[92]) some aspects of arrangements of this kind within a group of companies, or between or amongst associated companies. It is sufficient to say, for the purpose of the present case, that any allegation that such an arrangement is a sham is a contention which may not rest on assumption; it must be proved. No attempt was made to prove the contention in the present case and, as I have said, Ms Dye’s own pleaded case left no room for it.
82 The suggestion that CommSec was not Ms Dye’s true employer was based on judgments of Merkel J, which predated the commencement of Ms Dye’s employment. In Finance Sector Union of Australia v Commonwealth Bank of Australia [2003] FCA 435, Merkel J dealt with applications for interlocutory relief. In those proceedings, the Finance Sector Union of Australia (“FSU”) had commenced proceedings under the Trade Practices Act 1974 (Cth) (“TP Act”) and the Workplace Relations Act 1996 (Cth) (“WR Act”) trying to stop the new employment arrangements. The judgment dealt with an application for an interlocutory injunction which would have required CBA, and not CommSec, to be the employer of persons thereafter engaged in the PFS business. For a number of reasons the application for an interlocutory injunction was refused. There was no finding that contracts of employment between CommSec and individual employees were, or would be, a sham or legally ineffective. The contrary is the case (see e.g. at [14]–[15]).
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83 In Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158, at a final trial, Merkel J concluded that CBA, in establishing CommSec as the employer of employees in the PFS business unit, employed unlawful means to achieve an unlawful end. The unlawful means was concealment of the decision from the FSU until after it had been implemented. The unlawful end was the alteration of the position of 272 employees to their prejudice because they were entitled to the benefit of certain industrial instruments.
84 Those findings had no legal or practical application to employees who were recruited directly into CommSec. They had no application to Ms Dye. They have no legal significance for the present proceedings. Merkel J did not rule that CommSec could not be, or was not, the legal employer of persons like Ms Dye, or Ms Dye herself. The contrary is the case. At [127] to [141] Merkel J rejected an argument that CommSec was not an employer in its own right and was only an agent for CBA. His Honour said (at [137]):
137 … although CommSec employees may be acting as agents for CBA in providing the PFS business unit’s services, the services are being provided by CommSec’s employees. In those circumstances, absent an allegation of a sham, there are insurmountable obstacles confronting any argument that CommSec is not the employer of the employees concerned.
and (at [139]): 139 … it is clear that the common intention, viewed objectively, of the contracting parties … is that CommSec was to be the employer.
85 Reliance on the judgments of Merkel J in the present proceedings was misconceived. Those judgments emphasise rather than deny the effective status, in general and in Ms Dye’s case, of CommSec as an employer in its own right.
86 CBA and CommSec are different legal entities which may sue and be sued in those separate capacities (a circumstance which the present multiple proceedings, commenced at different times in different courts raising different causes of action, sufficiently demonstrates). Ms Dye had a contract of employment with CommSec. Ms Dye was an employee of CommSec, she was not an employee of CBA; persons who were employed by CBA were not employees of CommSec, which is a different legal entity from CBA. That is not to say that CBA or CommSec might not for some purposes act as the agent of the other, or that persons employed by CBA (such as Mr Blomfield or Mr Patterson) might not for
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some purposes act as the agent of CommSec in its relations with Ms Dye. If that was alleged it would, if not admitted, require proof like any other factual issue. There are some admissions of that kind in the present proceedings. There is no adequate evidence which goes beyond the admissions. More detailed attention will be given to such matters, when they are relevant, in due course.
87 During her employment Ms Dye reported to, and was subject to direction by, persons employed by CBA, in whose ultimate business the services provided by CommSec and its employees found their place. Those persons included Mr Patterson and Mr Blomfield. To the extent that such persons provided direction and supervision of the work carried out by Ms Dye for CBA such persons did so, clearly enough, as employees of CBA. They also acted as the agents of CommSec for the purpose of supervising and directing the work of Ms Dye as an employee of CommSec. So much was admitted by the respondents. Those matters are fairly straightforward and none involve any novel or unusual propositions of law.
Reporting to Ms Bradbury
88 As previously mentioned, Ms Dye commenced to work in the bank’s operations, employed by CommSec, in March 2005. At that time one of the bank’s operating divisions was Premium Business Services (“PBS”). The Group Executive of PBS was Mr Michael Katz (level 6). One of the Executive General Managers in PBS was Mr Charles Benson, who was Executive General Manager, Risk and Finance (level 5). Ms Bradbury was a General Manager (level 4) who reported to Mr Benson and who also worked closely with Mr Katz. She was in charge of internal communications and public relations for PBS.
89 At the same time, there was a centralised department within the bank, headed by Ms Jill Lester (Executive General Manager, level 5) which was responsible for all external communications, including media liaison, and also internal communications across the whole of the bank’s operations. Some of these internal communications were conducted through the bank’s intranet, which published a range of information, including many of its policy documents of the kind generally available to staff.
90 At the time Ms Dye was appointed, Ms Bradbury had five other women in her team (Vicki McPherson, Kelly Coleman, Emma Bidstrup, Jodi Phillis and Nicole Arena) and then Rebecca Stroud was employed after Ms Dye began. They all worked as “events managers”.
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Ms Bradbury wished to engage someone at this time to work with various business units to identify “pro-active media opportunities” and “feed those through to the bank’s centralised team”. The proposed position was graded level 2 by the bank’s HR department, given the title “Business Relations Manager” and advertised. Ms Bradbury interviewed four or five people for the job including Ms Dye. Ms Dye was selected for the position. She was employed on a standard contract for level 2 within PBS, including standard salary and bonus arrangements. After she commenced, an arrangement was made to permit her to salary sacrifice to obtain a laptop computer to assist in her work.
91 Ms Dye’s contract of employment, which she signed on Friday 4 March 2005, referred to a position description. This document was tendered as part of her case. It also was dated 4 March 2005. Ms Dye insisted, throughout her evidence, that this position description (which showed her position as level 2) was not provided to her until some days later. She appeared to insist on this as some foundation for a suggestion that Ms Bradbury represented to her (in some way having contractual significance) that she was being engaged effectively at level 3. The suggestion has no contractual significance whatsoever. The contract clearly stated that Ms Dye’s engagement was to the role identified in the position description and, necessarily, at that level. Moreover, the evidence Ms Dye gave about this cannot be believed. Apart from the fact that the document itself bears the date 4 March 2005 and that Ms Bradbury gave evidence that Ms Dye had it when she signed her contract, Ms Dye’s own earlier written representations were to the effect that she was given the role description on 4 March 2005. This was before Ms Dye actually started work on 7 March 2005. Such representations were made, for example, in a statement Ms Dye prepared in June 2007 to support a workers’ compensation application and in a statement given to HREOC to support her claim to that body. In other statements she referred by way of complaint about other employees being at level 3 whereas she was just at level 2. The suggestion that she was engaged, or thought she was engaged, at level 3 by Ms Bradbury was contrived and I reject it.
92 One of Ms Dye’s claims in the proceedings is that her contract of employment guaranteed her $50,000 towards self-education expenses. I reject that claim. The written contract which Ms Dye executed on 4 March 2005 provides no support for the claim. Neither does the evidence generally. I accept Ms Bradbury’s evidence that she may have told Ms Dye that the bank had a generous policy concerning study assistance and that it would be
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possible to make an application for such assistance. Such arrangements are clearly not contractual.
93 Ms Bradbury’s assessment of Ms Dye’s performance in the first couple of months of her employment was that it was “absolutely outstanding”. There appeared after a couple of months to be some issues developing in Ms Dye’s relationships with some of the people with whom she was required to work, but at the time Ms Bradbury put it down to “teething problems” and maintained an overall judgment that Ms Dye had done a very good job. About this time Ms Bradbury completed a formal “Performance Feedback and Review” report (“PF&R”) which was generally complimentary of Ms Dye and contained no criticism of her work, rating her overall performance as “exceeds expectations”. It covered the period to 30 June 2005.
94 One of Ms Dye’s nominated responsibilities in the written description of her role was to work with Ms Lester’s central communications team (“CCR”). On Ms Bradbury’s evidence, which I accept, the role which Ms Dye took was to assist in identifying more proactive media opportunities and then to feed them through CCR. It appeared that overall, external communications was still the responsibility of those in Ms Lester’s team, especially in relation to direct media contact, and therefore Ms Dye was required to work rather closely with them. Those people included a Ms Tanny Tsanis, who was assigned to PBS as CCR’s representative. Around May 2005, not long after Ms Dye’s employment commenced, “clashes” began developing between Ms Dye and Ms Tsanis. Ms Dye asserted in her own evidence that they were doing the same job. Ms Bradbury firmly denied that. I accept Ms Bradbury’s evidence. This appears to be an early example of features of Ms Dye’s approach to her work which emerged with greater clarity later – she tended to self-select the work she would do according to what she found interesting and she gave insufficient attention to the fact that the selection of duties to be performed was a matter for decision by her superiors and was not for her to decide.
95 During May 2005, Ms Dye and Ms Tsanis did some work together on a proposed media release for a commercial initiative connected with the bank’s operations in London. In due course Ms Dye sent “final versions” to her CCR colleague (Ms Tsanis) and to Ms Anthea Cudworth in the International Communications team. Ms Lester, Ms Tsanis’ superior, was then copied into Ms Cudworth’s reply to Ms Dye. Ms Lester then sent an email, which was
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very critical of Ms Dye. For reasons which do not emerge fully from the evidence and are now not relevant, a perception developed on the CCR side that Ms Dye was appropriating, and wished to claim credit for, the work which had been done by Ms Tsanis and was intruding on Ms Tsanis’ own role and responsibilities. Ms Lester expressed her concern and her disapproval. Ms Bradbury came forcefully to Ms Dye’s defence. Shortly thereafter there were some negotiations between Ms Lester and Ms Bradbury which led to a formal statement of the respective roles.
96 Ms Bradbury’s evidence in the proceedings was that she herself had earlier performed the kind of role Ms Dye was now doing and never had any conflict or problem of the kind Ms Dye was experiencing. Nevertheless, at the time Ms Bradbury accepted and endorsed Ms Dye’s explanations and appears to have been a staunch supporter, as was reflected in the PF&R report given a little later. Ms Bradbury had occasion later to question whether her own judgment was faulty in that respect but, at the time, Ms Dye had her full, open and declared support.
97 In August 2005, Ms Bradbury asked Ms Dye to go to AgQuip as one of two events managers to run the logistics of the bank’s sponsorship of that event. It was at AgQuip that Ms Dye first met Mr Blomfield.
98 In early September 2005 more problems developed. Again Ms Bradbury took Ms Dye’s side. Ms Dye either became involved, or allowed herself to become involved, in efforts to organise media briefings which were in the province of the CCR group, and of Mr Fitzgerald in particular, who was the bank’s media spokesman. It is not necessary to attempt to resolve who might have had the better claim. Throughout the course of the correspondence on this issue, concerns were raised about Ms Dye and she was criticised in relation to her dealings with CCR. Again, Ms Bradbury sprang to her defence in quite strong terms. Few of these matters (if any) have direct relevance to the resolution of any of Ms Dye’s causes of action. It is necessary to mention them only to provide some context for later developments and to put into perspective Ms Dye’s claims to have been badly treated and under-appreciated by a series of managers (including Ms Bradbury) who were, she suggested, derelict in the performance of their own duties, a claim for which there is no objective support of any kind.
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99 Shortly after this last incident Ms Bradbury went on leave for about 10 days. When she returned Ms Dye presented her with a proposal to reorganise the roles and responsibilities of everyone working under the marketing and communications banner for PBS, which included some aspects of Ms Bradbury’s own responsibilities. The proposal included the idea that Ms Dye would be promoted to executive manager at level 3. The proposal, in all its aspects, was immediately rejected by Ms Bradbury and went no further.
100 Following the appointment of Mr Norris as CEO of the bank in September 2005 there were changes made throughout the bank. So far as they affected Ms Dye, Ms Bradbury’s group lost the communications aspect of the work earlier done, which went to CCR. Ms Dye’s position was identified as primarily related to communications. She would normally have become part of CCR. However, according to Ms Bradbury, Ms Dye was given the option, which she accepted, of staying with Ms Bradbury’s team concentrating on “service and sales” rather than communications. Thereafter, until about May 2006 when Ms Bradbury left the bank at the time of another restructuring, Ms Bradbury’s group was involved in initiatives directed by Mr Katz and his service managers within PBS, which were identified and discussed at weekly meetings. Ms Bradbury’s evidence was that she engaged Ms Dye in those tasks.
101 Ms Bradbury also carried out some internal reorganisation of her own team at about this time. Ms McPherson was promoted to head the events team. Ms Dye and Ms Stroud were working at the same level, below Ms McPherson, but reported directly to Ms Bradbury as they were assisting with the service and sales work and were not directly involved in the events work. By this time Ms Bradbury’s direct reports after the earlier reorganisation, had become these three. According to Ms Bradbury’s evidence, which I accept, problems again became apparent in Ms Dye’s relationship with her workmates. Ms Bradbury began to question her earlier support for Ms Dye in response to the earlier apparent conflict with Ms Tsanis. Apart from tension with members of the CCR group, it was apparent to Ms Bradbury that Ms Dye did not get on with work colleagues in her own area. Ms Dye blamed everybody but herself for this. According to Ms Bradbury, Ms Dye would devote disproportionate energy to the criticism of others whenever any form of conflict arose, rather than simply working to resolve the problem.
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102 It was a feature of Ms Dye’s evidence in the present case also that she lost no opportunity to criticise those whom she regarded as her detractors. Some of the criticism was gratuitous, some of it seemed spiteful. Most of it which suggested lack of effort, endeavour or ability on the part of others including Ms Bradbury was, I am satisfied on the evidence, untrue. Frequently in her evidence, Ms Dye asserted that she “carried” other colleagues and sometimes entire programs. On the evidence before me, that was not true. She seems to have been unable, or unwilling, to acknowledge the efforts of others or to assess her own objectively.
103 About the time that Ms Bradbury promoted Ms McPherson she gave Ms Stroud, a level 2 employee like Ms Dye, the title of Business Relations Manger, the same as Ms Dye. Ms Stroud had previously worked as an events manager. Ms Bradbury’s evidence was that Ms Stroud was receiving exceptional results in her performance reviews. Ms Bradbury’s evidence was that it was a very busy time and Ms Stroud, like others, was working hard and long hours. Some of the work Ms Stroud was required to do involved rectifying work from Ms Dye. Ms Dye appeared to resent Ms Stroud. She began to keep some form of clandestine record of Ms Stroud’s absences from work, suggesting in her cross-examination that she (Ms Dye) was “carrying” both Ms Bradbury and Ms Stroud, as well as performing her own work. Ms Dye suggested that Ms Stroud took more than 70 sick days and half-days from July 2005 to March 2006, all approved by Ms Bradbury who had become a personal friend of Ms Stroud and was favouring and supporting her. There is no objective support of any kind for those suggestions. Ms Stroud’s leave records show that in the period beginning on 30 September 2005 (apart from annual leave) Ms Stroud used 6 days of carer’s leave in four different allocations of 1 – 2 days each and took no sick leave until 2 days in August 2006.
104 Ms Bradbury had occasion to give particular thought to these issues because she was involved in January 2006 in making a half-yearly review of Ms Dye’s work performance. Ms Bradbury raised her concerns with Ms Dye at a meeting on 9 January 2006. Ms Bradbury raised with Ms Dye, as an area that needed improvement, her ability to get on with other members of the team, suggesting that improvement was needed in that area. Ms Bradbury also raised issues regarding the quality of her work and a decline in her attention to detail as well as a “lack of ownership” of her work.
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105 When it was suggested by Ms Bradbury that there were problems in Ms Dye’s work, and room for improvement, Ms Dye broke down in tears. This reaction, and Ms Dye’s apparent disbelief and rejection of any criticism, are important matters to note. The things which have, according to the evidence in the present case, provoked stress, anxiety and objectively observable reactions in Ms Dye have been instances of criticism or the possibility of job related insecurity. Over the period of her employment by CommSec that is something which stands out. It may be contrasted with the lack of any objective indication that she was subjected to the various forms of sexual harassment suggested by her. Ms Dye, then and later, was unwilling to accept criticism of her work. Nevertheless, I am satisfied that at this time Ms Bradbury was attempting to find ways to help Ms Dye. Despite her growing misgivings about Ms Dye, Ms Bradbury also set out to assist her to deal with the shortcomings Ms Bradbury had now identified.
106 At that time the bank conducted a three day course for invited managers called the CommLeader course. It began as a course for senior managers and was offered progressively to more junior managers. At the end of 2005 and early 2006 it was normally only available to persons at least at the level of executive manager (level 3). Ms Bradbury, on her evidence, “pulled some strings” so that Ms Dye could attend. Her nomination of Ms Dye was accepted and she attended the CommLeader course from 31 January to 2 February 2006. Ms Dye preferred to see her attendance at this course as some acknowledgement that she enjoyed general recognition as having level 3 status. That is a sad misinterpretation of the efforts which were being made to help her.
107 One of the features of the CommLeader course was a preliminary exercise in personal assessment which was matched with an assessment by work colleagues chosen by the course participant. The results were confidential. Ms Bradbury did not have access to them at the time, although they were put to Ms Bradbury in cross-examination and thereafter became part of the evidence. At the time Ms Bradbury only knew what Ms Dye chose to tell her, to which I will turn shortly. Ms Bradbury had, however, attended the course herself and was familiar with its processes and objectives. It was for that reason she thought it might be helpful for Ms Dye to gain some insight into how others saw her, as well as benefiting from the course itself. Ms Dye claimed that Ms Bradbury decided which work colleagues would provide assessments. That was not true. Ms Dye had no staff reporting to her, so that usual element of feedback about personal style was not available. Ms Bradbury suggested therefore that she
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nominate some work colleagues and some “clients”. Ms Bradbury was also an obvious choice as Ms Dye’s immediate superior. I am satisfied that within Ms Bradbury’s suggested, but not obligatory, guidelines Ms Dye made her own choices. Ms Bradbury would have chosen Ms Stroud to make an assessment of Ms Dye. Ms Dye did not. Ms Dye emailed those she selected, including Ms Bradbury, the necessary form to complete to make their assessment.
108 It was expected that a participant would discuss the course with their manager after completing it. Ms Dye and Ms Bradbury had that discussion on 3 February 2006.
109 Before dealing with what was discussed it is necessary to say something about the self-assessment and the assessment of work colleagues provided before the course took place (which were known as the Life Styles Inventory (“LSI”) scores). The scores Ms Dye attributed to herself showed a self-image that tended towards the perfect. In very many matters she gave herself the (apparently) best or most favourable score. She appeared not to sense the inherent lack of balance in the picture she presented by her self-ratings. Not surprisingly, the ratings given by others presented a more varied picture in two senses. First, the tendency towards the perfect did not appear in the assessment of others. Secondly, there was a range of opinion in the various matters for assessment that illustrated that a number of people, in a number of areas, had a much less complimentary view about those particular matters than Ms Dye herself. Nevertheless, by any reasonable or proportionate view of the assessment of others, the picture was not generally unflattering and was far from dismal. Perhaps the most striking feature of the exercise was Ms Dye’s own lack of proportion when assessing herself.
110 Virtually no evidence was given about the course itself, and there is very little other evidence about its effect on Ms Dye except the reactions she disclosed to Ms Bradbury after the course concluded. This discussion took place in a context where Ms Bradbury had already raised with Ms Dye the effect she appeared to have on others. Ms Bradbury’s observation, from their discussion, was that Ms Dye simply took the position that her assessors did not understand her well enough. When Ms Bradbury suggested she (Ms Dye) might need to change, the discussion ended in tears and Ms Dye went home. At this meeting, Ms Bradbury also raised again issues regarding the quality of her work. In her evidence, Ms Dye suggested that the only matters of concern that Ms Bradbury raised with her at that time
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was a spelling mistake or two. I am satisfied that much more substance was involved than that. Ms Bradbury was pressed in cross-examination to provide examples to support her criticism of the quality of Ms Dye’s work after her initial satisfaction. She did not appear to have any difficulty recalling both the nature of, and examples of, the things that concerned her.
111 Later that day Ms Bradbury rang Ms Dye to see how she was and they then met again, also outside the office, for a longer period. At this meeting Ms Dye spoke more openly to Ms Bradbury about her personal feelings generally.
112 These events and Ms Dye’s attendance at the CommLeader course did not, in Ms Bradbury’s observation, lead to any improvement in Ms Dye’s work. About this time Ms Bradbury facilitated counselling for Ms Dye. As she knew Ms Dye was seeing a bank counsellor, Ms Bradbury professed herself unwilling to push matters. As things developed Ms Bradbury left before any further, more formal, response was required.
113 Ms Dye began to see Ms Ingrid Liepins, a psychologist employed by the bank, on 13 February 2006. Two weeks later she made the first of many visits to Dr Nirmal Grewal, a general practitioner. Those visits (to Ms Liepins and Dr Grewal) were to address workplace stress. This is an important marker in the present proceedings. Ms Dye’s stress-related problems, and the treatment she accepted or sought for them, pre-date any suggestion of sexual harassment by Mr Blomfield or Mr Patterson. The manifestation in February 2006 of Ms Dye’s difficulty in managing her reactions is, on the evidence in the present case, related to matters which concerned her work performance and her work relationships. They are unrelated to any matter of complaint in the present proceedings. That is the picture which continues thereafter.
114 Ms Dye appears to have first met Mr Patterson in late February 2006, following a request by Ms Bradbury that she do so. Originally, a meeting appears to have been tentatively scheduled for 14 February 2006, but Ms Dye put it off and they apparently met at 3.30 pm on Friday 24 February 2006. It may be inferred that Ms Dye was invited to a social function (farewell drinks for a colleague) by Mr Patterson but she declined later that afternoon and the following week they exchanged chatty emails about it.
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115 On 14 March 2006, Ms Bradbury had two conversations with Ms Dye about work Ms Dye was doing on a project concerning “One Team Referrals” (“OTR”). She was working with Ms Dominique Henzell on this project and was to have a meeting with her. There had been some delays. Ms Bradbury regarded this as a project for which Ms Dye had taken insufficient responsibility and which was behind schedule as a result. After the meeting with Ms Henzell, Ms Dye approached Ms Bradbury again and said she had resolved the issue by passing responsibility to Ms Henzell for completion of the project. Ms Bradbury was not pleased and expressed her displeasure. Ms Bradbury accepted in cross-examination that the incident would have been upsetting for Ms Dye as she had been publicly rebuked in front of others.
116 The following morning Ms Dye collapsed, or fainted, at work and hit her head causing it to bleed, perhaps (it being a head wound) profusely. She was taken to hospital for attention. In Ms Dye’s evidence, she attributed this injury to workplace stress caused by Ms Bradbury’s hostility towards her. The objective evidence paints a different picture.
117 There is no reason to think that Ms Bradbury’s criticism was unreasonable, unwarranted or immoderate. I certainly would not accept Ms Dye’s unsupported assertions to that effect. Furthermore, the matters to which the fainting incident was attributed, by those responsible at the time for making some assessment of them, are very different from Ms Dye’s account given in these proceedings. The ambulance and hospital notes record (consistently and in a number of places), in a history obviously given by Ms Dye herself, that she was at work and felt fine, she went outside to smoke a cigarette, she re-entered the lift and felt lightheaded and nauseous, and then fainted on reaching her floor. She suffered a small laceration to her forehead that might have required a stitch. There is no mention of stress or difficulty at work. There was recorded the fact that the same week Ms Dye had ceased taking an oral contraceptive pill, commenced a “body cleansing diet” and at the same time started to smoke (presumably again). The tentative explanation for her fainting was said to be – “likely combination of recent OCP (oral contraceptive pill) ceased/started smoking/radical diet”.
118 I reject any suggestion that Ms Bradbury was responsible for Ms Dye fainting. The only relevance of this incident, in light of Ms Dye’s claim that Ms Bradbury’s criticism
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caused her stress, is to reinforce the conclusion that criticism of Ms Dye generates anxiety for her.
119 In March 2006, Mr Norris announced a restructure which would affect Ms Dye. Mr Katz departed on about 23 March 2006 and was replaced by Mr Stuart Grimshaw. Under the new arrangements Ms Bradbury’s position would in due course become redundant, but Ms Dye and her colleagues were all to be accommodated elsewhere. Ms Bradbury suggested Ms Dye and others speak to Mr Patterson. Another possibility was a job with Ms Catherine Harris, who headed CCR and reported to Ms Lester. Ms Bradbury also drew to Ms Dye’s attention a position that was available at Macquarie Bank by forwarding to her, on 5 April 2006, an email Ms Bradbury had received about it. On the same day, Ms Dye sent her resume to Mr Richard Green who was with the bank’s Institutional Banking Division. Ms Dye asked Mr Blomfield to be a referee for her with respect to the position with Mr Green. Mr Blomfield did not regard her as qualified for the position and told Mr Green so, but Ms Dye would not have known that at the time. Of the possibilities I have mentioned, a position with Mr Patterson soon appeared to hold most promise for Ms Dye.
120 On 10 April 2006, Ms Dye sent an email to Mr Patterson. In it she suggested she had “been offered a job with” CCR. She then said she would prefer to work with OTR and Sales and Service (which were under Mr Patterson’s supervision) and would like to work for him if a position was available. This is a curious email because the whole of Ms Bradbury’s group transferred to Mr Patterson anyway and Ms Dye would simply have transferred with them. However, this initiative at least, as will be seen, opened up a different path for her. On 13 April 2006, Mr Patterson sent an email to Ms Harris and Ms Bradbury. The email concerned Ms Dye. Mr Patterson referred to having “taken over the team”. He mentioned Ms Dye’s opportunity to “move to CCR”. He referred to her expressed interest in Sales and Service and indicated he was prepared, if she wished, to take her into his team independently as “part Personal Assistant, part Team Assistant, part Events Manager”. It was clear that Ms Dye’s options were open but equally clear from this email that Ms Dye’s position was under no threat and she would have a job to go to, whatever she chose.
121 It seems strange that she should do so in this context but, as I will later discuss, Ms Dye asked Mr Blomfield on 17 April 2006 to be a referee for this position also. That seems
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to have been unnecessary and raises questions about why she drew herself to his attention by so doing. Mr Patterson concluded his email by saying:
In essence Vivienne has the opportunity to look at a couple of roles and make her decision from there.
I have asked Vivienne to respond directly back to myself on this issue.
122 Ms Dye was on leave for two weeks following 14 April 2006. During her absence Ms Bradbury noticed that Ms Dye had removed a scanner from the office and also a confidential copy of a document known as “the beige book”. The beige book was kept locked in a cupboard. It had been allocated (as one of limited known copies) to Ms Bradbury and a colleague. It had been made available to Ms Dye by Ms Bradbury to complete an assigned task which was finished in September 2005. The beige book was, apparently, a very useful source of information about guiding policies and principles in PBS which had been put in place under Mr Katz’s stewardship. Ms Bradbury was very disturbed to see it, and a scanner, missing. She also concluded, after she had Security open Ms Dye’s own locked cupboard, that other material appeared not to be there. An email exchange ensued in which Ms Dye professed an innocent desire to “burn” some personal photos and become more familiar with the beige book to help with her work. This incident was never satisfactorily explained. The things Ms Dye removed would obviously raise a suspicion about her intentions, especially as it was known she might be interested in working for another financial institution. No accusations were made and I need make no finding about her reasons, beyond saying that I reject the proposition that she had any reasonable basis for doing what she did. She clearly did not. Upon Ms Bradbury discovering what had happened quick steps were taken to retrieve the missing articles but without any apparent adverse consequence for Ms Dye, who commenced shortly thereafter to report to Mr Patterson.
123 Ms Bradbury’s position with the bank was made redundant in April 2006 and she departed. I conclude that by that time she had very serious reservations about Ms Dye’s work and did not regard her as meeting ordinary expectations. As Ms Bradbury left before the end of the annual review period she had no occasion to record her views in a formal PF&R report.
124 It was put to Ms Bradbury in cross-examination, presumably to provide some foundation for the pleaded assertion that Ms Dye was promised level 3 status, that she told Ms Dye that she (Ms Bradbury) needed to put her “on the cusp of a level three salary bracket
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for the first three months” and that she “would in effect be at the level of Executive Manager”. Ms Bradbury rejected these suggestions categorically. I regard them as having no substance. The fact that instructions to this effect could have been given (without which, of course, such factual propositions could not have been advanced) is a telling indictment of Ms Dye’s lack of reliability.
125 During the cross-examination of Ms Bradbury a number of propositions were put to her to the effect that she was jealous of Ms Dye, was prepared to be vindictive towards her and, it was necessarily implied, was prepared to give false evidence about her. Some of these suggestions or implications had no support in any other evidence in the case, at the time or later. None appear to me to have any foundation in fact whatsoever. Presumably, the questions reflected Ms Dye’s instructions. If so, those instructions seem to me to have their origins in hostility towards Ms Bradbury. Those instructions, and others, should have been treated with a greater level of discretion and reserve. The cross-examination of Ms Bradbury came uncomfortably close to an abuse of the usual right of cross-examination, and to a use of that right to make a personal attack on a witness. Ms Bradbury was not the only witness to be approached in this way. Ultimately, the approach taken serves only to confirm the lack of substance in Ms Dye’s position and reflects poorly on her objectivity.
Going to work with Mr Patterson
126 In Ms Dye’s evidence in chief she said that she first met Mr Patterson in February or March 2006. She had been asked by Ms Bradbury to arrange a meeting to discuss OTR. According to Ms Dye, she met Mr Patterson again on 12 or 13 April 2006 to enquire if he had a position available in his area. I have already pointed out that Ms Dye’s position was under no threat. She could have gone to CCR. She approached Mr Patterson on 10 April 2006 asking for a job. On her own evidence, this was before any meeting on 12 or 13 April 2006. Ms Dye said that when they met Mr Patterson asked probing personal questions which made her feel embarrassed and suggested drinks after work. She said she accepted the invitation to drinks after work at Establishment Bar with Mr Patterson, a male friend of his (Mr Grant Phillipp) and Ms Okano, at Ms Okano’s urging. Ms Okano and Ms Dye lived in the same apartment block and they were, at the time, friends. Ms Okano worked for the bank in a different area. Ms Dye recounted a version of events about this evening (13 April 2006) and events in the following days concerning Ms Okano to which it will be necessary to return.
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They involve the allegation that Ms Okano complained of being sexually imposed upon by Mr Patterson that evening (perhaps “raped” as Ms Dye alleged matters). I am satisfied that no such thing happened, and nor did Ms Okano suggest to Ms Dye that it did. For present purposes I mention Ms Dye’s allegation now because it sits uncomfortably (even on a superficial examination of reality) with the way she alleged that matters then unfolded between her and Mr Patterson.
127 Ms Dye commenced her period of leave on that weekend. Her evidence in chief was that while she was on leave Mr Patterson contacted her and offered her a position. I earlier set out an extract from Mr Patterson’s email of 13 April 2006 which records that Ms Dye had already been asked to respond directly to him when she had made her choice. Ms Dye suggested that she was constrained to accept this particular position with Mr Patterson because she would otherwise be made redundant. I do not accept this evidence. It is not true. Ms Dye was not to be made redundant. She had a choice of positions. The choice arose from her own approach to Mr Patterson to which he responded positively.
128 Mr Patterson appears to have taken over Ms Bradbury’s responsibilities, including responsibility for her team, at the beginning of May 2006 about the time that Ms Dye returned from leave. Ms Bradbury’s evidence is that she herself was then on leave for most of May. As earlier indicated, Mr Patterson had proposed for Ms Dye’s consideration, before she went on leave, a project based role as an alternative to other possibilities including remaining with the events team under his supervision. Ms Dye did not get on with the other members of the events team, on her own evidence. I infer that she indicated to Mr Patterson fairly early that she would prefer a more individual role as he had suggested. Nevertheless, she appears to have been concerned that the role be a defined and properly established one. That seems natural enough given the surrounding circumstances and general uncertainty at the time. It is common ground that Mr Patterson suggested Ms Dye obtain some examples of position descriptions of “business analyst” from HR and prepare something for his consideration. These were sent to her by Mr Glen Davis, an executive manager in HR, on 15 May 2006. Ms Dye appears, by this time, to have been assigned at least one project by Mr Patterson – to assist him in a review of the events and marketing budget across PBS. On 31 May 2006, Ms Dye physically changed her work location, so that she sat in close proximity to Mr Patterson and his personal assistant, Ms Johnson. On 1 June 2006, the details of the position description were worked out and a final version was emailed by Ms Dye to Mr
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Patterson on 2 June 2006. In the meantime, her work for Mr Patterson continued and it is apparent that he found it more than satisfactory.
129 It will be apparent from the matters I have described that Ms Dye’s role was not very clearly defined at this stage. Perhaps that made her anxious. In any event, she wished to have a detailed position description on which she could rely. Ms Dye suggested, I am satisfied, that she and Mr Patterson discuss the matter over dinner, which occurred on 1 June 2006. At various points during her evidence, Ms Dye attempted to suggest that dinner was Mr Patterson’s idea, or that her original idea was something very informal and he changed the arrangement into a social affair. In my view, it was Ms Dye’s idea to discuss the matter over dinner. It would be unduly tedious to set out all the matters which contribute to that conclusion but they include the fact that her earliest written versions of this event attribute the idea to herself and that, as part of her accusations against Mr Patterson concerning events which allegedly occurred after that evening, she attributed to him a statement that what happened (later) was her fault because she invited him to dinner on that evening.
130 Based on the sample position descriptions supplied to her by HR, Ms Dye produced a document which she had created. She does not appear to have provided Mr Patterson with the specific examples he requested. They discussed the document Ms Dye had prepared over an early dinner on 1 June 2006 at a Chinese restaurant. Mr Patterson made extensive handwritten changes. Ms Dye suggested in her evidence in chief that the document was not thereafter ever put into a final form. That was not true. She herself incorporated the handwritten changes and sent it to Mr Patterson the following day. That, so far as I can tell, resolved that issue, if it ever was an issue.
131 It will be necessary to recount, at a later time, other allegations made by Ms Dye concerning this evening (1 June 2006), but according to her evidence at the trial (after Ms Dye had apparently refreshed her memory overnight) the evening finished with a cordial conversation about work topics in the library at her apartment building, although Ms Dye suggested at the same time that Mr Patterson had “badgered” her to be allowed to come up to her apartment; badgered in a “jokey, friendly sort of manner”.
132 Ms Dye’s position was now set. Her role was established in writing. Despite the fact that Ms Dye had chosen to accept a specific project based role with Mr Patterson, rather than
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stay with the “events” team, she apparently felt she should be kept informed about matters on which they were working. Others did not agree. On 7 June 2006, Ms Dye sent an email to Ms Nicola Arena:
Hi Nicole – I don’t appear to have been sent a copy of the guidelines you’ve developed. Can you send them through please?
Thanks, VLD
133 Ms Arena rebuffed her:
Hi,
Angus informed me (and the others) that you expressed interest in doing an analytical role. He also said that he realised you didn’t have experience or want to be involved in the ‘Events’ space so I did not include you.
I think between myself and the Marketing Managers, we will deliver/promote a consistent and collaborated guide to PBS Events.
Thanks for checking though.
Cheers
Nicole
134 Ms Dye’s rejoinder was copied to 10 further people. It said (some might think aggressively and then patronisingly so far as it concerned Ms Arena):
Nicole – this kind of petty politics is unacceptable. We are One Team.
Karen – I remember you raise [sic] the idea of creating guidelines such as these over a year ago during our very first meeting. It was a great idea.
Nicole – nice job pulling this together.
135 Ms Arena sent the exchange to Mr Patterson, saying:
Can we discuss tomorrow on our way to SCG. I think we have a major issue here that you may not be aware of.
136 Mr Patterson then sent an email to Ms Dye only:
Viv – something to think about – even thought [sic] Nicole did not supply you with the guidelines as you requested – would not expect you to copy all in on your response. If you felt that way the discussion should have occurred with Nicole directly and should not have involved others – please be wary of such responses
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given that it has the effect of communicating to others that you are not part of the Team.
Happy to discuss.
137 Ms Dye replied to him the next day:
Thanks for the feedback Angus, I’ll take it on board. I can’t help but think – had the events people not been publicly informed by yourself at last week’s events meeting that I lack the experience to do their job – that this would have ever happened. Over the past year, their former manager invested a lot of energy toward undermining the academic qualifications and industry experience that I bring to this Bank. I am a motivated and passionate employee, and quite frankly, as long as I know that I’m working my hardest for the company, I’m blissfully unconcerned with other people’s personal opinions of me.
This behaviour is not only being directed toward me at the moment, but also toward Sinead and you. In my opinion, establishing a degree of transparency is not necessarily a bad thing – it could in fact nip this in the bud. It took courage to take this action – and if it does put a stop to petty politics – them I’m willing and quite capable of taking on the risk of any associated fallout. (However I do appreciate your concern).
I don’t want anything to interfere with my ability to deliver on my commitments to you at the moment, nor cause you unnecessary angst. You’ve asked me not to do it again, and for that reason, I assure you I won’t. They need a manager, and I think that your decision this morning was a good call.
138 I will refrain from any comment about the terms of this response beyond saying that it gives no objective support of any kind for the suggestion made in the present proceedings that Ms Dye felt sexually harassed by Mr Patterson by this time. On the evidence I heard there was no support for the accusation made in this email against Ms Bradbury (“their former manager”).
139 Ms Dye’s email was sent on Thursday 8 June 2006. At one time, Ms Dye advanced allegations that Mr Patterson had, one week earlier, sexually harassed and assaulted her in her apartment. By the time of the trial, the accusation was that these things (and worse) occurred on 9 June 2006, the following evening.
140 If Ms Dye is to be believed, on 9 June 2006 Mr Patterson subjected her to a serious sexual assault, including digital vaginal and anal penetration. It will be necessary to deal with some of the detail in due course. For reasons I will explain, I reject the allegations. They were, in my view, knowingly false when first made (in 2009) and when given in evidence at the trial.
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141 9 June 2006 was a Friday. On the evening of 12 June 2006 (Monday of a long weekend), Ms Dye went with Mr Patterson and Mr Phillipp to watch a World Cup soccer match between Australia and Japan at the Orient Hotel at the Rocks, in Sydney. Again, the details will be explained in due course. I am satisfied that the evening concluded with a short visit by Mr Patterson to Ms Dye’s apartment well after midnight, during which they watched the final minutes of an exciting game of football and Mr Patterson then left. Ms Dye’s evidence in chief omitted any reference to this visit to her apartment and in her cross- examination she denied that it occurred. I am satisfied that it did.
142 The following morning, on Tuesday 13 June 2006, Mr Patterson, his relatively new personal assistant Ms Johnson and Ms Dye had coffee together, during which time there was some discussion about a forthcoming business trip to New Zealand. Ms Dye had known, at least since 5 June 2006, that Mr Patterson was to go on this trip as she mentioned it in a diary entry on that date. According to Mr Patterson’s evidence, which I accept, Ms Dye was the second person considered to accompany him on the trip which was to do some fact finding and have various meetings, including a meeting with Ms Chapman, who was then working for another bank (Auckland Savings Bank (“ASB”)).
143 Ms Dye’s account of the discussion over coffee was that Mr Patterson told her and Ms Johnson that when his superior, Mr Grimshaw, learned that Ms Dye was to go with him to New Zealand he (Mr Grimshaw) said: “Shit Angus, does [Mr Patterson’s wife] know?”, the implication apparently being that suspicion would inevitably arise about them being away together. A comment of this kind seems unlikely to be forgotten by a new personal assistant. Both Mr Patterson and Ms Johnson said it was not made. Later that morning Ms Dye asked Ms Johnson, openly and without lowering her voice in their open plan office area, if separate rooms had been booked. Ms Dye’s evidence was to the effect that she did this to indicate to Ms Johnson her resistance to the idea (which she imputed to Mr Patterson) that Mr Patterson had a sexual liaison in mind. Ms Johnson remembered this remark but thought Ms Dye was just drawing attention to herself. I am satisfied this was an accurate perception. Ms Dye wished, apparently, in many things to be the centre of attention. This just seems to have been another example. I am certainly satisfied that Ms Dye entertained no apprehension about unwelcome sexual conduct from Mr Patterson and that her remark about separate rooms did not, and was not intended to, suggest otherwise. In fact, Ms Dye’s relationship with Mr Patterson and Ms Johnson appeared to extend (at least on Ms Dye’s part) to a sort of ribald,
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sexually orientated humour which the remark may have been intended to represent. The previous working day, on 9 June 2006, Ms Dye sent a colour cartoon to Mr Patterson and Ms Johnson which figured a representation of “the hand of God” emerging from a cloud to offer a male figure (without sexual organs) a large penis, accompanied by the words:
I didn’t make you quite as intelligent as the woman so here’s a little something that will do your thinking for you!
144 When asked about this email and cartoon in her cross-examination Ms Dye did her best to cast doubt on their authenticity but was unable to do so. That simple exchange with Mr Patterson and Ms Johnson is a more eloquent testament to Ms Dye’s own brand of humour and approach to office relationships than her protestations in the proceedings about her suggested sensibility to sleazy or coarse behaviour from others.
145 There is some evidence also that Ms Dye flirted fairly openly with Mr Patterson at about this time. Ms Johnson gave evidence that Ms Dye was accustomed to perching on Mr Patterson’s desk to converse with him. I took Ms Johnson to infer that Ms Dye chose to interact with Mr Patterson in a way suggesting close familiarity. On one occasion, in a coffee shop, Ms Johnson noticed that Ms Dye sat next to Mr Patterson in such close proximity as to make him obviously uncomfortable. These are small matters which are generally worked out between sensible people without too much fuss. They would have little significance were it not for the fact that Ms Dye accused Mr Patterson of sleazy behaviour and making sexual overtures to her. I am satisfied that this general accusation should be rejected. Having regard to Ms Johnson’s observations, there is no reason to think that Mr Patterson had acted towards Ms Dye as she suggested in her evidence in the present case. If he had done so, Ms Dye’s conduct towards him would have been very different. It seems to have been Ms Dye’s own conduct which caught other people’s attention rather than the reverse. In addition, it would have been impossible, I think, for Ms Johnson not to have noticed if Ms Dye’s accusations of sleazy behaviour and talk by Mr Patterson had any substance. Ms Johnson denied the proposition without reservation. I accept her evidence and reject Ms Dye’s.
146 Ms Dye alleged at the trial that on the evening of 13 June 2006 Mr Patterson assaulted her a second time. According to Ms Dye’s evidence in chief she set out, during the day, to dispel any thought Mr Patterson might have about an affair, but he did not wish to discuss it at work. She said they met after work in the library of her apartment building and had a long
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conversation during which she stated, and he accepted, that they would not have an affair. Later she agreed to serve him tea in her apartment but upon entry he physically attacked her again. I am satisfied that this incident did not occur, that it was invented and that the accusations are false.
147 About this same time (on 15 June 2006), Mr Blomfield is said to have engaged in behaviour which would later become the subject of Ms Dye’s accusations. That needs to be borne in mind in the overall context. If Ms Dye is to be believed, she became in mid June 2006 subject to sexual harassment by Mr Blomfield and Mr Patterson on virtually alternating days, yet made no complaint at that time about the matters alleged at the trial. Neither do the allegations of sexual harassment at this time correspond (as does her distress about criticism of her work) with any objective evidence of a reaction or response on her part consistent with her allegations.
148 The next alleged incident concerning Mr Patterson was said to have occurred on Friday 16 June 2006. Ms Dye’s evidence at the trial was that she agreed to meet Mr Patterson again immediately after work for drinks that day at the Hyatt Hotel. Ms Dye said it was raining heavily. That was offered as the objective circumstance which explained why she walked with Mr Patterson to their office building so he could drive her home, and why they needed to walk together sheltering under an umbrella. According to Ms Dye, when they entered the building and got into a lift to go to the carpark Mr Patterson pushed her roughly against the wall of the lift and kissed her against her will. The events to which Ms Dye tied the accusations were critical to the story. However, it was not in fact raining on that night, or for days on either side of that date. When faced with this problem, Ms Dye’s response was to maintain that the assault occurred in the lift on 16 June 2006, but that the walk home from drinks at the Hyatt Hotel in the rain occurred on a different Friday. For other reasons, the story does not fit into another Friday night reasonably soon before or after 16 June 2006. It is not possible to accept that what Ms Dye alleged happened on this particular evening.
149 This was the suggested context in which Ms Dye accompanied Mr Patterson to New Zealand on 21 June 2006 and had dinner with him on the two evenings they were there and breakfast on the first morning. The context was that Mr Patterson had first “raped” Ms Okano (on 13 April 2006) and then on three separate occasions during the 12 days before the trip to New Zealand had assaulted Ms Dye (once with forcible digital penetration), on each
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occasion taking advantage of her by surprise and on each occasion using his physical strength to overpower her. As will be seen, I am satisfied that each of the allegations is baseless. That also is the only way to reconcile Ms Dye’s preparedness to go to New Zealand with reality. I do not accept she would have done so if she had been subject to the assaults she alleged at the trial.
150 Ms Dye’s evidence was that she went to New Zealand to further her career, confident she could “control” Mr Patterson. I accept that was her belief, because I do not accept that the alleged assaults, or any form of sexual harassment, had occurred. Nor was Ms Dye sexually harassed in New Zealand, as I shall discuss. However, something did happen in New Zealand. It was the subject of discussion, and settlement, in the week after Mr Patterson and Ms Dye returned to Australia. The discussions partly involved Mr Blomfield and, more formally, Mr Carroll who was in the HR department and who became involved at Mr Blomfield’s suggestion. At no point, even on Ms Dye’s evidence, was any suggestion made during those discussions with Mr Blomfield or Mr Carroll that any of the events asserted on 9 June, 13 June or 16 June 2006 had occurred. It is necessary to make these points now (although I will have to explain them all in more detail) in order to make clear why events in New Zealand should be understood in the light of my conclusion that the alleged assaults in June 2006 had not occurred. The conclusion would not, in any event, alter any finding about the ultimate significance of events in New Zealand and their aftermath, but the overall picture would be unnecessarily confused if the point was not made now.
Events in New Zealand
151 The only evidence about events in New Zealand is that given by Ms Dye and Mr Patterson. There is little contemporaneous objective material to assist in the resolution of their competing versions and recollections. Nevertheless, I have had no real difficulty coming to firm conclusions about such matters as are necessary for a resolution of relevant matters in the present proceedings.
152 The first evening, 21 June 2006, requires little attention except for two disputed matters. Mr Patterson and Ms Dye dined at an expensive French restaurant. Ms Dye’s accounts of Mr Patterson’s comportment on this evening varied over time but in none of her accounts is there any reliable suggestion of any sexual harassment or sexually explicit comment or conduct. One issue about which Ms Dye’s version of events changed over time
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was who paid for the dinner. In her evidence before me, Ms Dye said that she was asked to put the cost of the dinner on her corporate credit card so that Mr Patterson could “hide” it from Mr Grimshaw. I reject that suggestion. In an earlier written version of events Ms Dye said that Mr Patterson paid for this dinner, as he always did when they went for coffees, lunches, dinners and drinks. Mr Patterson’s corporate credit card records show that he did pay for the dinner and Ms Dye’s corporate credit card records show that she did not. No other complaint relevant to the proceedings was made by Ms Dye about this evening. Mr Patterson’s evidence was that, after dinner, they both listened to music for a time in Ms Dye’s hotel room, using her MP3 player. They had to share a single set of headphones. That required them to sit shoulder to shoulder. Ms Dye emphatically denied that anything of the kind happened which would, if it had occurred, have been quite inconsistent with the general nature of the allegations she made against Mr Patterson in the proceedings.
153 It is not necessary to come to firm or final conclusions about that matter but I think it is likely that it occurred as Mr Patterson suggested. In part, that is because I found Mr Patterson to be worthy of belief with respect to matters where his recollection was not impeded and I found Ms Dye, to the contrary, to be an unreliable and untrustworthy witness who would tailor her evidence to her perception of what would advance her immediate goals. The suggestion that something of this kind occurred is also consistent with the picture that developed about the friendly relationship between Ms Dye and Mr Patterson at this time. Contrary to Ms Dye’s evidence, which I do not accept about this particular issue, I am satisfied that, at this time, they enjoyed a very friendly, sociable relationship and felt generally quite at ease in each other’s company. That harmonious position suffered a setback shortly afterwards but on this evening there is no reason to doubt that the evening finished amiably and platonically as Mr Patterson suggested.
154 Although it will make no difference to my conclusion that nothing that happened in New Zealand constituted sexual harassment by Mr Patterson or any breach of contract, I will do my best with the available evidence to reach a conclusion about what probably happened on the second evening of Thursday 22 June 2006.
155 The following evening, after their meetings, Mr Patterson and Ms Dye dined at a more modest Italian restaurant. Ms Dye proffered a version of events which suggested a verbal altercation, followed by her storming from the restaurant leaving Mr Patterson to pay
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the bill. Nothing, even on Ms Dye’s version of what happened, supports any suggestion that there was any form of sexual harassment involved. At its highest there was a disagreement which, in part at least, resulted from Ms Dye taking offence at a perceived insult. Furthermore, contrary to her initial denials, documentary evidence showed that Ms Dye paid with her corporate credit card. When confronted with this evidence, Ms Dye’s attempts to find an alternative explanation for the unmistakeable fact that the credit card in her name had been charged with the cost of the meal verged on the ridiculous. Forced to retract from her initial suggestion that, following events to which I shall refer shortly, she had stormed from the restaurant leaving Mr Patterson to pay, Ms Dye quickly concocted some alternatives which were patently fanciful. Although she would not say so, her final position appeared to be that she left her credit card with Mr Patterson who presumably (on this version) then forged her signature. I reject Ms Dye’s evidence about this matter. I am satisfied that she paid for the meal in the ordinary way, even if, for reasons now to be given, things may by then have become strained between her and Mr Patterson.
156 Both Ms Dye and Mr Patterson refer to there being either an altercation (Ms Dye) or a disagreement (Mr Patterson) on this evening. The cause of it is in contest. Neither version of events provides a completely satisfactory foundation on which to conclude what actually happened. In Ms Dye’s case that is because I find her evidence to be generally unreliable and it was, with respect to this incident as with respect to very many things in the case, the subject of reworked and inconsistent versions over a period of time. In Mr Patterson’s case he was unable to recall the detail of the conversations although certainly able to deny specific aspects of Ms Dye’s version. The basis for Mr Patterson’s confidence in this regard was that he was certain he would have remembered such events had they occurred as Ms Dye alleged. That seems likely.
157 Ms Dye’s evidence was that, during the conversation towards the end of their time in the restaurant, Mr Patterson mentioned that he had long service leave due in the following year and was thinking of going to Tuscany, where he had spent some pleasant time as a young man. Ms Dye said that Mr Patterson then asked her if she had ever been to Tuscany. In her evidence in this case (but not in her earlier written versions of events), Ms Dye said that she regarded this as a sexual proposition. I reject this assertion. It is either fantasy or a fabrication. A question of that kind, if it was asked at all, could not objectively be regarded as a proposal for a long-range assignation the following year, at which time Ms Dye would
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presumably go to Tuscany with Mr Patterson, as he left his wife and children behind, so they could consummate his proposition. No reasonable person could invest the words attributed to Mr Patterson with such significance without a much closer connection with his supposed goal. Nor could an enquiry of this general kind (if it was made) fairly be regarded as involving a much more immediate proposition. The only significance of Ms Dye’s suggestion about this matter is that it introduces, in her evidence, the events which she said happened next. According to Ms Dye in her oral evidence in the proceedings her response to Mr Patterson’s question was “fuck off and fix up your sex life with your wife”. She said Mr Patterson responded by saying “you are nothing but a stupid blonde with big tits that nobody takes seriously and the only reason anybody talks to you at the bank is because they are trying to fuck you”.
158 According to an earlier written statement, Mr Patterson did not ask Ms Dye whether she had been to Tuscany, but had simply informed her that he was planning to take long service leave and go to Italy. Ms Dye’s April 2008 published allegations recorded the following:
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.”
159 I am not satisfied that this exchange occurred in either form, as alleged or in substance. However, for the sake of further discussion, for the moment I will assume that something to this general effect might have happened. On that assumption some general comments are needed. First, in Ms Dye’s version of any exchange of this kind I think it is likely that any coarse language attributed to Mr Patterson is the product of her imagination, rather than any recollection of what he said. Mr Patterson struck me as quite old-fashioned about matters of that kind and probably not given (at least when talking to women) to coarse or vulgar language of the kind attributed to him. Ms Dye, on the other hand, seemed to me to have very few reservations about the use of such language and to be prepared to use it freely.
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160 The next point to make is that if such an exchange occurred it would not have represented any form of sexual harassment on the part of Mr Patterson. That is the significance with which Ms Dye’s counsel tried to invest the exchange but the suggestion will not survive even passing scrutiny. Offensive, insulting or inappropriate as such an outburst might be, it would not constitute sexual harassment merely because bodily parts or copulation were referred to. It would clearly not constitute a sexual advance or request for sexual favours. Nor would it constitute other conduct of a sexual nature. Whatever view is reached about any exchange that occurred at the restaurant that evening it cannot assist Ms Dye’s case. She had very clearly, on her version of events, entered territory which was none of her business. She could hardly complain if her attack provoked a response.
161 All that said, I am not satisfied that events transpired as Ms Dye asserted. The version of events given in her oral evidence was a version which had been progressively developed over the previous period of almost five years. So far as the evidence in the present case reveals, the first record of any assertion by Ms Dye of something of this kind are notes taken by her solicitor, Mr Gordon Henderson, on 12 November 2007 and her treating psychiatrist, Dr Enrico Parmegiani, on 28 November 2007. Mr Henderson’s note of Ms Dye’s assertion was that Mr Patterson said at some stage: “You are useless. You are just a female. You’ve got no value to the business”. Ms Dye gave a more colourful account to Dr Parmegiani on 28 November 2007, attributing to Mr Patterson: “You know Viv, nobody takes you seriously at the bank, they all think you are a dumb blonde with big tits”.
162 In an initial statement made by her in connection with her complaint to HREOC, Ms Dye said: “Angus had told me that I was a useless blonde with big tits and nobody takes you seriously”.
163 In an email on 18 February 2008, Ms Dye sent a series of draft assertions to Mr Rochfort to the effect that she was harassed and discriminated against on the basis of her gender by Mr Patterson and Mr Blomfield and discriminated against on the basis of gender and disability by Mr Selvarajah. Ms Dye said in this email to Mr Rochfort: “Hi Peter – is this what you’re looking for? Feel free to add to/change etc as you see fit”. In this email the statement attributed to Mr Patterson in New Zealand was: “People just think you are a dumb blonde with big tits and no-one takes you seriously”.
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164 This was the assertion which Ms Dye chose to make about this conversation at the end of 2007 and in early 2008. A little later it was recast into the form I set out earlier. The recast version was given in evidence in the proceedings. For reasons to be explained I remain unsatisfied that something of this kind (on any version) was actually said.
165 Ms Dye alleged in her evidence that she repeated the remark to Mr Patterson after they returned from New Zealand but that he, even then, professed no recollection of it. She said that Mr Patterson responded that all he did was make a blonde joke to which Ms Dye took offence. Mrs Dye in her evidence also said she was told by her daughter that Mr Patterson could not remember what he said in New Zealand except that it was “just a blonde joke of some description”.
166 Mr Patterson’s recollection of events at the trial was far from clear. He denied the words attributed to him in Ms Dye’s oral evidence without difficulty on the basis he would never have said them. I think it probable that is true, and more than probable that in any event he did not say any such thing on that evening. Mr Patterson could recall that Ms Dye at some stage made an observation to the effect that women who had children had an obligation to get “back in shape” after childbirth so they could please their husbands. He took the remark as a reflection on his wife and reacted with at least demonstrable irritation. Mr Patterson’s recollection has some support from Ms Johnson who recalls a phone call from Mr Patterson the following morning which mentioned that he had had a disagreement with Ms Dye about an issue of this character. Mr Patterson also recalls that Ms Dye took offence at a “blonde” remark by him but he could not remember the context. He thought it was not made as a result of his reaction to Ms Dye’s remarks about childbirth. According to Mr Patterson they left the restaurant in an ordinary way after Ms Dye paid.
167 On no version of the conversation on that evening was there any form of sexual harassment practised upon Ms Dye by Mr Patterson. Whatever their exchange, and whatever reason for it, it had nothing to do with Mr Patterson seeking to take advantage of her sexually. It seems undeniable that Ms Dye either gave Mr Patterson offence at some stage or at least caused him to become irritated. It is not disputed that Mr Patterson also gave offence to Ms Dye by some remark which he made.
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168 Ms Dye alleged that, the following day in a taxi to the airport, Mr Patterson told her she should look for another position and that he wasn’t interested in being her boss anymore. I am far from persuaded that such a thing was said. However, I am prepared to accept that Ms Dye became anxious, in some fashion or other, about whatever happened at the restaurant. In the April 2008 published allegations, which contained the more elaborate allegation about Mr Patterson’s remarks, before any mention is made of a suggestion by Mr Patterson that Ms Dye should look for another position she recorded: “I stayed up all night crying as I was fearful about my job and career prospects at the Bank”. This is consistent with Ms Dye’s history of anxiety about the security of her position. She may well have perceived that she had provoked a reaction from Mr Patterson which might be to her later disadvantage. I think it likely that Mr Patterson quickly forgot whatever it was that caused their disagreement and was more anxious to deal constructively with Ms Dye’s (perhaps unanticipated) discomfort and apparent distress than he was to take any further step to give effect to his own irritation (if that is what was actually involved at this stage).
169 Mr Patterson and Ms Dye had a prior arrangement to meet the next morning for breakfast before checking out and going to their first meeting, which was to be with Ms Chapman who was then in a senior position with ASB. Ms Dye did not go to breakfast. She was late to check out. When they set off Mr Patterson was in a hurry and anxious not to be late. He may have seemed irritated about the delay, which was beginning to threaten their timely arrival. He probably chided Ms Dye, who does not react well to criticism as many events in her employment history demonstrate. Eventually, she declined to accompany him to the meeting. I am not persuaded that Ms Dye’s conduct was a manifestation of any offence she took to something Mr Patterson had said the previous evening. I think it equally likely that Ms Dye was unable to control her own reaction to the realisation that she had probably offended Mr Patterson by her own remarks.
170 However, it is possible that Ms Dye was genuinely annoyed by what Mr Patterson had said. Perhaps she believed she was owed an apology. Mr Patterson’s own evidence provides some support for this. But even if that is so, I am satisfied it did not arise from any form of sexual harassment.
171 As indicated above, Ms Dye alleged that in a taxi on the way to the airport Mr Patterson indicated to her that he no longer wished to “be her boss”. I am satisfied that if
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anything like this was said it did not amount to any suggestion that Mr Patterson was purporting to terminate her employment with the bank. Accepting it at its highest it could only amount to an indication that Ms Dye should attempt to find a position elsewhere, not under his supervision.
172 However, in the end, I am not persuaded that Mr Patterson made any active suggestion to Ms Dye that she should find another position. I accept his evidence that to the best of his recollection he tried at once to clear the air but Ms Dye was unwilling to discuss the matter. Those respective positions continued the following week. I shall return to discuss those matters a little later after I have set some context concerning Mr Blomfield.
173 Upon her return to Sydney Ms Dye apparently decided two things. First, Ms Dye, I infer, decided that she needed an explanation for Ms Okano, with whom Ms Dye was in close contact and whom she knew to have a close relationship with Mr Patterson at that time, about why she and Mr Patterson had fallen out. The explanation that Ms Dye gave Ms Okano was that Mr Patterson had propositioned her in New Zealand and she had rejected him. That was a version of events which did not match any of the versions which I have had to consider for the purpose of this trial.
174 Secondly, Ms Dye decided to approach Mr Blomfield for a position. This may have readily coincided with a desire to be directly within his sphere of influence. It did not, as will be seen, result in any position for her. When a position became available, months later, that was unrelated to anything which had happened at this time. Ms Dye also suggested to Mr Blomfield that Mr Patterson had propositioned her in New Zealand but this allegation sank rapidly from view when Mr Blomfield commenced to suggest some formal examination of it, as I shall discuss. There is no reliable version of events which would support any suggestion that Mr Patterson sexually propositioned Ms Dye while she was in New Zealand. In Ms Dye’s evidence in this case the only such suggestion was that Mr Patterson asked her if she had ever been to Tuscany.
175 I have no hesitation in concluding that the statements made by Ms Dye to Ms Okano and to Mr Blomfield were explanations which she thought would put her in a good light relative to Mr Patterson. They were not based on the truth. Ms Okano responded immediately to that effect. She did not believe Ms Dye and asked for her telephone so that
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she could call Mr Patterson. Ms Dye’s version of this event is that Ms Okano attacked her and tried to take her telephone so she (Ms Okano) could call Mr Patterson’s wife. I reject this suggestion. Mr Patterson and Ms Okano enjoyed each other’s company. There is no reason to believe that Ms Okano was then or at any other time vindictive towards Mr Patterson or had any desire to hurt or embarrass him. I also reject Ms Dye’s suggestion that Ms Okano attacked her physically. There is no support for this allegation and Ms Okano explicitly denied it. On the contrary, I accept Ms Okano’s evidence that Ms Dye lashed out at Ms Okano physically. In general I accept Ms Okano’s evidence and in general I find Ms Dye’s evidence to be extremely unreliable.
176 The statements made to Ms Okano and Mr Blomfield to the effect that Mr Patterson had propositioned Ms Dye in New Zealand provide another example (in fact two such examples) of Ms Dye’s preparedness, in her dealings with people, to make statements and accusations regardless of their truth and careless of their significance for others if it suits her immediate purposes to do so. Nothing that emerged in the evidence in this case gave any reason to think that when those statements were made to Ms Okano and Mr Blomfield they had any factual foundation whatsoever. I infer that Ms Dye simply perceived a need to find an explanation for each of them to explain why she and Mr Patterson had a falling out. She invented one which would make it seem that she was not to blame.
Initial contact with Mr Blomfield
177 I earlier mentioned that Ms Dye and Mr Blomfield first met at AgQuip in August 2005 while Ms Dye was working for Ms Bradbury. Their contact at this event appears to have been passing. It was not organised by either of them. The same cannot be said for the times they met over the succeeding nine months or so up to mid-June 2006. Despite Ms Dye’s contention that most of these encounters represented Mr Blomfield’s desire to see her I am satisfied that was not the case. On the contrary, almost all these meetings were initiated by Ms Dye. Furthermore, a good deal of the evidence she gave about the meetings was untruthful.
178 Many of the meetings appear to have had either a direct or arguable connection with Ms Dye’s own work. There is no evidence that Mr Blomfield took any of them amiss. It is what was made of them in hindsight, for the purpose of the present proceedings, which is now of most relevance.
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179 The first of their meetings, after AgQuip, took place in late August or September 2005. Ms Dye said in her evidence in chief to her own counsel that the meeting came about because Ms Bradbury had asked her to “meet with various people who attended the event”. Ms Dye recanted in cross-examination. The effect of Ms Dye’s evidence in cross- examination was that she did not initiate this meeting but that Mr Blomfield did. I reject this assertion as false. Ms Dye said Ms Bradbury simply asked her to “contact” people. From that point of distinction Ms Dye said she contacted Mr Blomfield’s personal assistant and Mr Blomfield scheduled a meeting. She attempted then to make the point in cross-examination that it was only Mr Blomfield with whom she met face to face, obtaining other information in writing or by telephone. This assertion does little to change the position. She may have been content to follow Ms Bradbury’s asserted instructions to “meet with” people by obtaining less direct feedback from them than this instruction (volunteered by Ms Dye) seems to suggest. It does little to move the initiative for the meeting to Mr Blomfield. Furthermore, in the Blomfield proceedings in the Supreme Court in 2009, Ms Dye gave direct and unequivocal evidence (before a jury) where she agreed without qualification or reservation that “as between [her] and Mr Blomfield, that contact [the meeting] was initiated by [her]”.
180 In a written statement prepared to convey her various complaints to HREOC, Ms Dye recorded that on 31 August 2005 she had a “[m]eeting with Michael Blomfield at Nicola’s [Ms Bradbury’s] request”. Ms Dye’s explanation for the inconsistency between these statements and her evidence in cross-examination in the present case was patently unsatisfactory. She seemed determined, with no obvious sense of concern or reticence, to insist on a new characterisation of events in cross-examination, contrary to her own earlier written representations, her evidence to the Supreme Court in the Blomfield proceedings, and her evidence in response to her own counsel, because she thought it suited her case to do so. It was a trifling matter of fact in its own right. Its greater significance is as one of very many examples in Ms Dye’s evidence of unreliable evidence represented by a twisted version of the facts. Her credit could probably not have survived more than a few such instances. There were very many.
181 The next meeting occurred in February 2006. Ms Dye sent Mr Blomfield an email on 6 February 2006 asking for “half an hour” of his time to get his thoughts on a project on which she was engaged. This time, evidently to deflect any suggestion that the initiative for a meeting had come directly from her (as a fair reading of the email might suggest), Ms Dye in
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her evidence said that Ms Bradbury had asked her to send the email and organise the meeting. That explanation is not consistent with the terms of the email, but that may be put aside for the moment. Ms Dye was asked about the discussion at the meeting. It concerned Mr Blomfield’s success in achieving culture change at CommSec. It was suggested to Ms Dye during her cross-examination that, at the meeting, Mr Blomfield suggested the best way for her to understand was to attend one of the events periodically conducted in CommSec where such matters were addressed. They were referred to as “off-sites”. Ms Dye’s version was that Mr Blomfield did not make a general suggestion of this kind but, in fact, extended a specific invitation. When she was reminded that the suggestion made to her about how the conversation went accorded with her evidence given to the Supreme Court in the Blomfield proceedings, she professed to have no recollection at all of what was said in the meeting, apart from one irrelevant, gratuitously offered, remark whereby she suggested that Mr Blomfield had criticised Mr Katz; a subject having no connection at all to the matters about which she was being asked.
182 It is clear that, however positive Mr Blomfield had been about Ms Dye’s possible attendance at an off-site, no invitation to any particular event had been made. On 20 February 2006, Ms Dye sent Mr Blomfield another email asking how she might get on the invitation list for the next off-site. Mr Blomfield replied to the effect that she should consider herself on the list. All of this seems friendly, co-operative and constructive. There is no element of special interest shown by Mr Blomfield who, on the face of the objective record, responded co-operatively to Ms Dye’s contact, request for a meeting and request for an invitation.
183 Ms Dye did attend an off-site shortly thereafter. Mr Blomfield was also there. It was one of a number of such events organised at about that time. In her evidence, Ms Dye suggested that Mr Blomfield singled her out at the event to make a presentation. That was not true. As part of the preparation for the event, all participants were instructed to prepare a presentation, spending about two hours to make a sufficient and real effort in the process. They were each invited to make a short presentation based on their efforts. Ms Dye’s evidence that she was singled out by Mr Blomfield to attend one of these events, and singled out for special or personal attention by Mr Blomfield as an attendee, is as unreliable as the evidence I referred to a short time ago. At one point in her evidence, Ms Dye even went so far as to offer the off-site “invitation” as an example of Mr Blomfield inviting her to “a party”
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because the conference had as part of its program an evening occasion. The conference involved a one-day working session followed by a dinner. There were around 20 different off-sites during this period attended by about 15 people at each session. The suggestion that any represented simply “a party” was gratuitous and patently unreliable. This event was offered also as an example to support a gratuitous accusation made against Mr Blomfield (who in fact had to that point an enviable record of success at CommSec) that all he did was have “drinks and parties all the time and parties and drinking”, that being “his culture”. That may have been the slur Ms Dye wished to advance from the witness box but it did not represent any objective state of facts disclosed by the evidence, or her own earlier attitude when she was obviously enthusiastic about the prospect of a close professional relationship with Mr Blomfield.
184 There were other contacts between Ms Dye and Mr Blomfield during March, April, May and June 2006. The respondents invited me to find that virtually all were initiated by Ms Dye. I think that is a correct assessment of the evidence but not much turns on that fact alone. Mr Blomfield does not appear to have regarded any of them as unusual and appears to have co-operated, sometimes appreciatively, in Ms Dye’s initiatives. The evidence about these matters left me with the impression that Ms Dye took opportunities to meet Mr Blomfield as they presented (and occasionally created them) but not in a way which at the time gave any cause for concern or seemed out of place to her superiors or to him. I think it likely, in light of the whole of the evidence, that Ms Dye was attracted to Mr Blomfield personally, as well as professionally, but there is nothing wrong with that, so far as it goes.
185 Ms Dye was an employee of CommSec. Mr Blomfield was CommSec’s General Manager and Mr Selvarajah was one of his executives. Ms Dye, one way or another, was moving more directly into their sphere of action and responsibility. Events at this time, and later, suggest that Ms Dye was not regarded as intrusive in any professional sense, especially given Mr Blomfield’s inclusive style of management. She was at least part of the background and occasionally in the forefront. However, there is certainly no evidence to suggest that Mr Blomfield had identified Ms Dye, “Svengali-like”, as someone on whom he had his eye or who caught his particular personal or professional interest.
186 As indicated earlier, Mr Norris became CEO of CBA on 22 September 2005 and commenced to make changes. On 23 March 2006, Mr Norris announced a Bank-wide
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restructure. As part of this restructure Mr Grimshaw became the Group Executive for PBS, replacing Mr Katz who left the bank. It became common knowledge by early June that an important announcement would be made by Mr Grimshaw on 15 June 2006. Mr Blomfield knew, and shared with Mr Selvarajah, Mr Grimshaw’s plans to establish a new banking division (LBB) with Mr Blomfield promoted to head it as Executive General Manager (at level 5). Mr Blomfield decided to have “a few drinks” to follow the official announcements. Mr Selvarajah organised and co-ordinated the event. Ms Dye suggested in her evidence that Mr Blomfield, motivated by his special interest in her, directed Mr Selvarajah to invite her to this event. There is no other evidence to support the suggestion. Mr Blomfield and Mr Selvarajah both denied it, each saying that Mr Selvarajah made the decision and took the initiative. The only objective evidence about the matter is an email from Mr Selvarajah to Ms Dye on 7 June 2006 where he wrote:
Michael and I and some others are going out for a few quiet sherbets next Thursday – post announcements. Let me know if you would like to come along. Will give you details when we know where etc.
and she replied:
How delightful. Thanks for the invite. I’ll be there.
187 Mr Blomfield said he did not know Ms Dye had been invited until she sent him a congratulatory email on 15 June 2006, after the announcements.
188 Meanwhile, Ms Dye had been arranging photo shoots for PBS executives and on 25 May 2006 suggested the arrangements could be extended to include CommSec, and in particular Mr Blomfield. The suggestion was passed on to Mr Blomfield and, perhaps in anticipation of the announcements he knew were to come (although this could not have been any part of Ms Dye’s motivation), it was accepted on his behalf by his personal assistant, Ms Lynda Bayada. The photo shoot occurred on 31 May 2006 and Ms Dye was present. Ms Dye took Mr Blomfield’s photos to his office on 14 June 2006.
189 Ms Dye’s evidence at the trial was that she was contacted on 13 June 2006 by Ms Bayada and asked to urgently deliver the photos. Ms Dye gave an explanation for why, the next day, she took them herself to the different building where Mr Blomfield worked, rather than put them in the bank’s internal delivery system. The announcements were due on 15 June 2006. I do not reject or discount the possibility that Mr Blomfield (or his staff) would
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regard the photos as useful to have in that context before the announcements were made. However, there are aspects of Ms Dye’s evidence about events on 14 June 2006 which are not satisfactory. She took the photos to Mr Blomfield’s office. On any version, there were other people in his office when she arrived and at least two remained while she was there. Nevertheless, on her evidence, some coded conversation took place suggesting to her Mr Blomfield’s interest in her. That is denied by Mr Blomfield and I am satisfied that nothing of the kind occurred. Ms Dye also suggested, in various versions of events, that after she left Mr Blomfield’s office he followed her to the street and said he wanted to find a way for them to work together. I reject this suggestion. First, Mr Blomfield was in a position to arrange that if he wished from the following day. Secondly, within two weeks Ms Dye in effect asked for a job; she did not get one. Another suggestion was that Mr Blomfield asked her to meet him on Friday 16 June 2006. That also is incorrect. There was such a meeting but the initiative came from Ms Dye. She wanted to advance “a marketing idea”. After Ms Dye left Mr Blomfield’s office she sent him an Outlook invitation for the meeting. It was accepted, most probably by Ms Bayada, on his behalf. There is no reason to doubt that the proposal, at that time, was seen as genuine enough by Mr Blomfield. The following working day (Monday 19 June 2006) Ms Dye sent Mr Blomfield an email setting out some research she had done, which Mr Blomfield appeared to find helpful when he received it. This is all quite ordinary. What is less ordinary are the accusations that Ms Dye made about Mr Blomfield’s behaviour on the evening of 15 June 2006.
190 Again, these matters will be explored in more detail, but a short summary is in order at this point. There are two parts to the evening that require consideration: at Le Chifley, a city bar at which about 30 of Mr Blomfield’s colleagues, and Ms Dye, gathered to mark his promotion; and afterwards when he walked Ms Dye to her apartment block, and they spoke outside. Ms Dye’s evidence was that, at the function, Mr Blomfield monopolised her company, acted in a smutty or lewd way, including pulling down his belt to show her a tattoo concealed by his shirt and pants, “dirty dancing” with a number of women and generally being sexually assertive towards her. The version given by others is very different. Some such evidence was given at the trial. Some recollections were obtained in an investigation carried out in December 2007. That evidence and those recollections are generally to the effect that Ms Dye positioned herself beside Mr Blomfield virtually all evening. Her behaviour was such as to suggest to some that she was actively pursuing Mr Blomfield and for the investigator, Mr John Matthews, to describe her conduct as “predatory”. At least two
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women who were at the function cautioned Mr Blomfield about her. Mr Blomfield, according to his evidence, had some idea of what was happening and decided to discourage Ms Dye, gently and reasonably. He walked her home, spoke to her in a friendly way and indicated, he thought, that there would be better objects for her attention. The following morning he asked Mr Selvarajah to make a mental note that he had found it necessary to speak to Ms Dye to discourage her. Mr Selvarajah, in his evidence, confirmed that Mr Blomfield had spoken to him the next morning to this effect.
191 Ms Dye’s version of events outside her apartment involves the proposition that Mr Blomfield manifested an unarticulated desire to have sex with her. Her case against Mr Blomfield depends on inference and innuendo. That was a position to which she seemed to become committed during her initial attempts to suggest inappropriate conduct by Mr Blomfield and, unlike her approach to the accusations made against Mr Patterson, she did not (or perhaps felt she could not) substantially add to them factually, although the characterisation of many things changed over time.
192 When suggestions of inappropriate behaviour by Mr Blomfield were first made in 2007 an investigation concluded that they had no substance. I have come to an even stronger view after 94 days of oral hearings, 600 documentary exhibits and nearly 8,000 pages of transcript. These and other accusations against Mr Blomfield and any suggestion of sexual harassment by Mr Blomfield, like the accusations against Mr Patterson, were false.
Events of 26 – 30 June 2006
193 Mr Patterson was conscious, as I earlier indicated, that something said in New Zealand at dinner on the evening of 22 June 2006 had upset, and perhaps offended, Ms Dye. On his evidence, he was keen to deal with the issue and resolve it, although he could not remember precisely what had caused it, except that he had made a “blonde” reference to which Ms Dye took umbrage.
194 On Monday morning, 26 June 2006, Mr Patterson spoke briefly to Ms Dye about arranging a meeting to discuss what had happened in New Zealand. Mr Patterson’s evidence was that he said to Ms Dye that he was not sure what had happened the previous week, but asked her if they could schedule some time to discuss how to move forward. Ms Dye said yes. After that discussion, Mr Patterson attempted to arrange a meeting with Ms Dye for that
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Friday (30 June 2006) by sending an Outlook invitation with the subject “catch up as discussed”, but she declined it at 9.51 am. He replied at 9.52 am and asked her to nominate a time that would suit but she did not reply for two days. When Ms Dye did reply she said she would not be available until the following Friday (i.e. Friday of the following week). A few minutes later Ms Johnson, on Mr Patterson’s behalf, sent an updated Outlook invitation for Friday 7 July 2006. When asked about what was said at the meeting on Monday morning, Ms Dye’s evidence was that Mr Patterson had told her that she had to be out by the end of the week. I reject that assertion. It is contradicted by the exchanges I have just mentioned.
195 In her evidence in chief, Ms Dye also asserted that Mr Patterson said, in New Zealand on Friday morning 23 June 2006 in a taxi on the way to the airport, that he was not interested in being her boss any longer and (importantly) she was to be gone by the end of the following week. It rapidly became apparent that there was no question, and no expectation on the part of Mr Patterson, that Ms Dye be gone by the end of the following week. The objective evidence shows that on 28 June 2006 Mr Patterson patiently accepted Ms Dye’s indication that she would not be able to meet him until two weeks later, the following Friday, 7 July 2006. His email appointing that meeting makes no suggestion that her job is over or in jeopardy. Ms Dye apparently went on with her work, or at least was expected to. Also on 28 June 2006 Mr Patterson emailed Ms Dye, and three others who reported to him, to ask them to organise meetings with him about their PF&Rs and requested them to nominate some referees as he had only been their manager for two months. None of those matters support the suggestion that Mr Patterson ever said Ms Dye’s position was at an end.
196 On Monday morning, 26 June 2006, after her brief conversation with Mr Patterson, and then declining his invitation to meet for a discussion that coming Friday, Ms Dye, at 11.29 am, took the opportunity to canvass Mr Blomfield for a position in his new division, LBB. She did so in an email saying that she no longer reported to Mr Patterson, which was certainly not true at that time on any version of events. Ms Dye decided, evidently, that rather than engage 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 with Mr Patterson, a suggestion which I reject. Not surprisingly, Mr Blomfield asked, in a return email, what had happened. Ms Dye, I am satisfied, chose an explanation which concealed her own contribution to her disagreement with Mr Patterson and replied to the effect that Mr Patterson had propositioned her and reacted badly when rejected. Ms Dye
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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 which might fall into this category. I have also dealt with the suggestion that any reference to Tuscany (if it was made) might fall into this category. In my view, the suggestion that Ms Dye was propositioned in New Zealand by Mr Patterson was invented. It was made to Mr Blomfield when Ms Dye was compelled to find some sensible explanation for the suggestion that she needed to find a new job, which was the basis she chose for her approach to Mr Blomfield. On Ms Dye’s own evidence, she did not want to provide an explanation to Mr Blomfield initially and, when she did so, insisted she did not want to pursue it with anybody else. As will be seen, she did not pursue it. Mr Blomfield, on his evidence, came quickly to doubt that the suggestion was true.
197 Apart from Ms Dye’s approach to Mr Blomfield, there is no other support for the suggestion that Ms Dye’s job was at risk. Ms Dye’s own behaviour is inconsistent with the suggestion. It is one reason why I am not satisfied that Mr Patterson said anything of the kind suggested by Ms Dye. Another reason is that Mr Patterson denied it and I have no reason to disbelieve him. A third reason is that Mr Patterson did not conduct himself consistently with the suggestion having any foundation in fact.
198 It is possible that Ms Dye understood that her remarks the previous Thursday evening had caused offence to Mr Patterson, that she was upset the next morning and fearful of her job as a result of her conduct, that she was unable to compose herself sufficiently to attend the meeting with Ms Chapman and that she was genuinely fearful of the consequences when she returned to work, being apprehensive (perhaps not without good reason) that, in the circumstances, Mr Patterson would have little interest in continuing to work with her. Alternatively, Ms Dye may simply have chosen to use the occasion to see if she could move closer, professionally and personally, to Mr Blomfield. That would be consistent with her demonstrable interest in him, and her conduct, on 15 June 2006.
199 Another problem for the explanation Ms Dye gave to Mr Blomfield for her approach to him on 26 June 2006 was that, under the bank’s employment systems, Mr Patterson (as Mr Blomfield well knew) had no authority to unilaterally alter Ms Dye’s reporting lines, remove her from his own supervision, assign her to someone else or terminate her employment completely, as Ms Dye also must have known even after her relatively short period of
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employment. There were, therefore, immediate difficulties with her story. Furthermore, Mr Blomfield was not an obvious person to approach with an issue of that kind. He was not in Ms Dye’s reporting line and he had no authority over Mr Patterson. The proper measure in such a case, as Mr Blomfield appreciated, was to enlist the aid of the HR department, which is what Mr Blomfield assisted Ms Dye to do. At that point any suggestion by Ms Dye that Mr Patterson had propositioned her sank without a trace. In my view, even if she was apprehensive that her own conduct might make life less easy for her with Mr Patterson, Ms Dye simply seized the opportunity to make an approach to Mr Blomfield for a job.
200 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 been happening. Ms Dye was very unwilling to say anything further. As much as she would say was that Mr Patterson had asked if she would bring her sex toys to New Zealand. In her evidence in the present case, Ms Dye asserted that Mr Patterson on about 13 June 2006 asked if he could take his sex toys to New Zealand. Whichever version requires consideration, there was no other support for it. Mr Patterson denied it. I am not satisfied that such a thing was said.
201 In brief, the position which quickly developed was as follows: when Ms Dye approached Mr Blomfield for a job and he asked what had happened her first response was to allege some form of sexual overture or proposition by Mr Patterson; that suggestion was not then, or later, supported by the slightest detail or specificity; the next allegation made, as something of a retreat perhaps, was the allegation about the sex toys comment. When the matter received attention by Mr Carroll soon thereafter neither of those things was alleged. I will mention shortly a suggestion that Ms Dye commenced to read from a document to Mr Carroll, which at one place referred to sex toys. Even if Ms Dye had read from this document, on her own evidence nothing in the part she alleged that she read to Mr Carroll referred to sex toys. I am satisfied that Ms Dye made no allegation of sexual conduct by Mr Patterson to Mr Carroll. All the evidence suggests, including from her own parents, that the last thing Ms Dye wanted to do at this stage was to appear to be making allegations of sexual harassment against Mr Patterson. The email response to Mr Blomfield was probably quickly regretted. It certainly was not pursued.
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202 When Mr Blomfield was told by Ms Dye that Mr Patterson had propositioned her, and that her position was threatened when she resisted, he acted promptly. He suggested Ms Dye speak with Mr Carroll. He contacted Mr Carroll and alerted him in general terms to the fact that Ms Dye would contact him. Things moved swiftly, but the focus changed immediately. 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. This may have been true but it was a long way from the version given to Mr Blomfield.
203 Ms Dye spoke to Mr Carroll on 28 June 2006. I have only Ms Dye’s evidence about the meeting with Mr Carroll and it also is not satisfactory. Ms Dye claimed that at the meeting with Mr Carroll she read to him part of a document 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 Ms Okano. The document was supposedly prepared to follow a suggestion by Mr Blomfield that Ms Dye write down what had happened “in black and white”. The “black and white statement” (so-called by Ms Dye) made no allegation that Ms Dye was propositioned in New Zealand. The part Ms Dye alleged she read to Mr Carroll did not refer to sex toys.
204 I expressed my reservations during the trial on a number of occasions about the proposition that any part of this document was read to Mr Carroll or that it was even in existence at the time. A complaint about sexual harassment is the very thing that Ms Dye was at pains to avoid, on her own evidence. The passages Ms Dye alleged that she read are not consistent with that stated objective. Ms Dye’s reluctance to pursue any allegation of sexual harassment was confirmed by Mr Blomfield. My reservations remain, despite the fact that Mr Carroll did not give evidence and an inference therefore arises that his evidence, overall, would not have advanced the respondents’ case, although no inference higher than that arises. The uncertainty must in this case be resolved. I resolve it by not accepting that the document, or any part of it, was read to Mr Carroll. In this, as in other matters, I would not have been prepared to accept Ms Dye’s unsupported evidence against the respondents about such a contentious matter, which amounts to a suggestion that Mr Patterson’s conduct came into general question before November 2007. I am satisfied it did not.
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205 After his meeting with Ms Dye, Mr Carroll arranged for Ms Dye and Mr Patterson to meet. Ms Dye said they met alone together on Friday 30 June 2006 and then again on the same day with Mr Carroll present. Mr Patterson could not recall the first suggested meeting but I am prepared to accept it happened. It was at the meeting with Mr Carroll present that a settlement was concluded.
206 Mr Patterson’s recollection after they returned from New Zealand of any specific conversation at dinner on 22 June 2006 was hazy. His recollection had not improved when he gave evidence. He accepted, however, that apart from Ms Dye’s remark about which he took offence, something he said using the word “blonde” offended Ms Dye. His recollection of the remark appears to have vanished as soon as it was made. In his evidence in chief he said:
HIS HONOUR: Mr Patterson, it sounds as though something happened in New Zealand? --- Yes, your Honour.
But you can’t remember what it was? --- No, your Honour. As I’ve always maintained, your Honour, I certainly recall using the word “blonde” in a context which gave rise to offence with Ms Dye. I apologised over dinner. I apologised on the way back to the hotel. On Monday morning I had made another attempt to actually set up some time to actually resolve this and be able to move forward.
207 Notes taken by Ms Dye of a conversation with Mr Patterson on 30 June 2006 appear to confirm that he had no recollection then of what the remark was. Nevertheless, Mr Patterson accepted he had given offence. He was prepared to apologise for it. That at least gives some support to Ms Dye’s suggestion that Mr Patterson insulted her, but it gives no support at all to the suggestion that he propositioned her or sexually harassed her. It gives no support at all to the suggestion made to Mr Blomfield to explain why Ms Dye was canvassing him for a job.
208 I do not think the position is as straightforward as Mr Patterson may, from his poor memory, have been prepared to concede. In the document proposed by Ms Dye as a settlement of her disagreement with Mr Patterson, which Mr Patterson endorsed with his apology, Ms Dye wrote: “I care for you Angus, and therefore your family, at a personal level.”
209 This would be an extremely odd statement to make, even if sincere, were it not for one aspect of the conversation revealed by the evidence and for which Mr Patterson’s actual
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recollection, and that of Ms Johnson, is a sufficient support. I am satisfied that Ms Dye did make a remark which Mr Patterson regarded as a slur on his wife, or at least on women who had borne children. I am satisfied that Mr Patterson revealed his displeasure.
210 I think it likely that Ms Dye judged that the best way to achieve job stability with Mr Patterson (having failed to interest Mr Blomfield at all in giving her a job) was to mollify Mr Patterson as part of the settlement and to achieve his future goodwill. I interpret the phrase I set out above, in the context of the evidence I have heard in this case and doing my best with it, as an apology for the remark reflecting on Mr Patterson’s wife.
211 Ms Dye drafted the document which resolved the issues between them. I shall set it out in full:
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 implication about my professional contribution to this company. As an employee of this company, these comments made me feel that my Manager considers me to be powerless to impact the business and therefore of little use. I found the nature of these comments personally insulting and abusive of the power of this reporting line. I’ve referred to the Bank’s policies on Discrimination and Harassment in the workplace and been advised by Human Resources that if I the employee found the behaviour offensive, the behaviour was offensive.
You have acknowledged that I was offended by the behaviour but claim non- recollection of your comments.
- I consider that the reason you allege I was late to breakfast the morning of Friday 23 June is a direct consequence of your comments to me on Thursday evening. - Whilst I didn’t want to meet you for breakfast, I did accompany you to ASB and we would have been on time for the meeting. - You were aware that I would be meeting with you prior to accompany you to the meeting on time, as confirmed by your telephone calls that morning. - I did subsequently withdraw from the meeting as your continued badgering upset me further. - I informed you afterwards that I felt it was best not to attend the meeting “in tears”.
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’ve 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.
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- I hope that the opportunities you’ve 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’d 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.
212 Some features of this account should be noted. Ms Dye referred to a “derogatory implication” about her “professional contribution”. She insisted she had made a greater contribution to the business than Mr Patterson had acknowledged. Conversely, she professed that she was learning a lot from him, cared for him and wanted to enjoy his company again. I do not regard any of these matters as consistent with a genuine accusation of sexual harassment. I do regard these matters as consistent with Ms Dye having become anxious about the security of her employment and seeking reassurance. I also regard them as consistent with something having been said by Mr Patterson which suggested that the contribution Ms Dye was making was not particularly important, a matter which no doubt caused Ms Dye concern.
213 Mr Patterson endorsed the statement with the following:
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.
214 I am 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 (which was in fact not interrupted or jeopardised) would go forward with mutual goodwill. Their agreement represented a complete settlement of the issue which arose between them. It had nothing to do with sexual harassment. The incident does not support any of the causes of action in the present proceedings.
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215 When Mr Blomfield was shown the settlement document accepted and signed by Mr Patterson he was surprised. He noted that it bore no resemblance to the accusations made to him by Ms Dye about Mr Patterson. It had nothing to do with an allegation of sexual harassment or a comment before the New Zealand trip about sex toys. Conversely, nothing had been said to Mr Blomfield that resembled the essence of the complaint acknowledged by Mr Patterson. I conclude that Mr Blomfield was not told the truth by Ms Dye about any relevant aspect of this matter.
216 Thereafter, I am satisfied, Ms Dye’s relationship with Mr Patterson resumed its previous friendly and sociable dimensions. If anything, their relationship was warmer and closer. Mr Patterson was a supporter and someone to whom Ms Dye could turn and she did so when things became difficult for her later. This friendly and (on Mr Patterson’s side) supportive relationship continued for the rest of Ms Dye’s employment. It was not until she apparently decided that Mr Patterson’s support was no longer available that Ms Dye began to publish allegations of the kind with which the present proceedings have been concerned.
217 Ms Dye continued to formally report to Mr Patterson until early September 2006, although she falsely asserted in her evidence that she ceased to do so on 18 July 2006. On 3 August 2006, Ms Dye made a “pitch” to Ms Bayer-Rosmarin indicating her interest in working for her and saying she was “currently reporting” to Mr Patterson. On 4 August 2006 Mr Patterson, as Ms Dye’s manager, informed her of her bonus payment. On 15 August 2006, Ms Dye made another “pitch” to Ms Bayer-Rosmarin referring to her “role” with Mr Patterson. Later, when seeking a position in LBB, working for Mr Selvarajah who reported to Mr Blomfield, Ms Dye nominated her previous two managers as Mr Patterson and Ms Bayer-Rosmarin. I shall deal, in a short while, with the circumstances in which Ms Dye, in early September 2006, ceased to report to Mr Patterson and commenced to report to Ms Bayer-Rosmarin.
Some further encounters with Mr Blomfield
218 Ms Dye asserted that on 12 July 2006, in a lift, Mr Blomfield took her hand in a possessive fashion and turned it to examine a phone she was holding in her hand. The evidence does not support this contention, which relies entirely on Ms Dye’s assertion.
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219 On Saturday 5 August 2006, Mr Blomfield was in the city after attending a funeral. Ms Dye and her mother were in the city. Mr Blomfield gave evidence that he walked straight past Ms Dye before recognising her and shortly afterwards, in an effort to be polite, sent her a text message saying: “Didn’t recognise you in your civvies”. Ms Dye and her mother composed a response, which Mr Blomfield found odd and disturbing. It said: “Wish I’d seen you in yours”. Mr Blomfield decided that he should speak with Ms Dye again to dispel any idea that she should flirt with him.
220 Monday was a public holiday. On Tuesday 8 August 2006, Mr Blomfield asked Ms Dye if she would like to join him and others for a drink at the Westin Hotel. She accepted. The events there will require some attention. Ms Dye alleged various overtures. Mr Blomfield denied them. I am satisfied that things did not happen as Ms Dye alleged. Indeed, although a fuller context will be necessary, it is common ground that at the Westin Hotel Ms Dye asked Mr Blomfield: “Do you have the hots for me?” He said he did not and asked: “Do you have the hots for me?” She said “yes”. This is an important exchange which reveals, in my view, what was really happening. Mr Blomfield’s evidence was that he felt a sense of relief that his suspicion had been confirmed and decided that he should make a further attempt to dissuade Ms Dye from her continuing interest in him. A little later he walked her home. They had another conversation in which he attempted to make things clear. The following morning he again told Mr Selvarajah to make a mental note that the conversation had occurred. Mr Selvarajah confirmed that Mr Blomfield spoke to him the next morning.
221 Later that year, Mr Blomfield was told that consideration was being given by Mr Selvarajah to engaging Ms Dye in LBB. Mr Blomfield said he thought about the earlier events but decided that Ms Dye must have moved on and he should not hold it against her. Ms Dye’s contention is that Mr Blomfield was anxious to have her close. Later events show that to be untrue. Ms Dye made some assumption that she and Mr Blomfield would enjoy both a close professional and personal relationship. When neither occurred, or was acknowledged, she handled things badly.
Professional and social contact with Mr Patterson after 30 June 2006
222 Ms Dye asserted in her evidence that 18 days after the resolution of matters with Mr Patterson (i.e. from 18 July 2006) she ceased reporting to him and commenced reporting to Mr Dominic Harvey. This evidence was untrue. It is decisively contradicted, apart from
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anything else, by Ms Dye’s own contemporaneous communications. Ms Dye continued to report to Mr Patterson until his own role changed. Then, in early September 2006 (on or about 4 September 2006), she commenced to report to Ms Bayer-Rosmarin, who reported to Ms Chapman who had joined the bank from New Zealand.
223 I reject Ms Dye’s suggestion that she ceased reporting to Mr Patterson on 18 July 2006. It was, on the contrary, very much business as usual. That is unsurprising. There had been no assaults as she alleged. The incident in New Zealand had been completely resolved. Mr Patterson remained her supporter and a friend. Despite Ms Dye’s assertion in her evidence that they did not speak for six weeks to two months after 30 June 2006, the contemporaneous records and the evidence given in the proceedings by Mr Patterson and Ms Johnson indicate otherwise. Ms Johnson gave evidence that there was no difference in the way Ms Dye and Mr Patterson interacted before or after their trip to New Zealand. She didn’t recall any tension between them and described the way they related to each other as “friendly colleagues”.
224 On 6 July 2006, Ms Dye sent Mr Patterson an email dealing with three matters. First, she advised him that through Ms Johnson she had set up a meeting at 10 am Monday and 4 pm Friday. These were to be regular meetings twice per week to discuss her projects. They were part of the overall settlement reached the previous week. Secondly, Ms Dye provided the names of five referees for her PF&R as Mr Patterson had requested of her and others the previous week. The first on her list was Mr Blomfield, a curious choice if matters had occurred as she suggested at Le Chifley and afterwards three weeks earlier (which I am satisfied they did not). The third item was a suggestion that Mr Patterson should approve an arrangement with Mr Blomfield where Ms Dye met his “top front line staff” for half a day every two weeks. Presumably this was seen by her as a career enhancing suggestion. She also wanted Mr Patterson to arrange an introduction to Ms Chapman when she began in a few weeks. The tone of the email was friendly, even chatty. It is not consistent with Ms Dye’s evidence that she and Mr Patterson had a strained relationship for some time after 30 June 2006.
225 In July 2006, Ms Dye introduced Mr Patterson to her mother. Ms Dye and Mr Patterson met accidentally whilst walking out of the building and Ms Dye mentioned that she was having lunch with her mother and suggested Mr Patterson come and meet her mother.
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On everybody’s account it was a pleasant meeting. That circumstance is also inconsistent with Ms Dye’s allegation (which I do not accept) that she virtually did not speak with Mr Patterson for at least six weeks after 30 June 2006.
226 In July 2006, Ms Dye went shopping with Mr Patterson to buy aftershave. They went to a shop nominated by her. Ms Dye was unresponsive about this issue in her evidence. That may not be surprising. This event suggests a warm, friendly relationship between them. It puts a very different complexion on her relationship with Mr Patterson.
227 During August 2006, Ms Dye and Mr Patterson had been talking about how to sell a Honda S600 motorcar. Mr Patterson thought it belonged to Ms Dye. She said it did not, that it belonged to her father. It makes no difference who the owner was. Mr Patterson was a “car buff” and was keen to help. He made a number of suggestions which led to an email to him from Ms Dye on 31 August 2006. It provided him with all the details of the car, of the kind which would appear in an advertisement. It is the kind of informal communication indicative of an exchange between friends.
228 The friendly relationship between Ms Dye and Mr Patterson continued after Ms Dye ceased reporting to him in early September 2006 and commenced reporting to Ms Bayer- Rosmarin.
229 On 11 September 2006, Ms Dye emailed Mr Patterson asking “can we still take the purpose [sic purple] one for a spin”. Ms Dye, in her cross-examination, professed no recollection of this. I think it likely she knew anything she said would contradict her earlier evidence about the nature and strength of her friendly relationship with Mr Patterson.
230 On 18 September 2006, Ms Dye sent an email to Mr Patterson suggesting a meeting at 3 pm on Friday 22 September 2006 at Hugo Boss. The email included: “would love to catch up if you’re free for a spot of shopping (for jeans)”. There is no basis to think that this suggestion arose from a relationship that had only slowly repaired. In my view, the true position was that Ms Dye and Mr Patterson enjoyed each others’ company on a social, as well as professional, level. Apart from their disagreement in New Zealand, which was quickly put behind them, their relationship was a very friendly one. It was not a relationship
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of sexual assaulter and victim – on the contrary. Those aspects were added to the story later, and the true position, which included social shopping, was hidden.
231 On 24 October 2006, Ms Dye sent an email to Mr Patterson to the effect that he was “missing in action” and suggested they catch up the following day.
232 On 15 November 2006, Ms Dye sent another chatty email about a recent training course she had attended, suggested by Mr Patterson.
233 Ms Dye also regarded Mr Patterson as someone to whom she could turn for advice and for support, as became very clear in 2007 when she finally fell out with Mr Blomfield and turned from seeking his attention to a desire to be revenged on him.
234 On 23 January 2007, Ms Dye exchanged very casual and chatty emails with Ms Johnson. She referred to Mr Patterson being “very sympathetic” with her and “such a good mentor”. This was a reference to the fact, as she accepted in her evidence, that Ms Dye called Mr Patterson for guidance about the issues she was having in LBB at that time, which will be referred to a little later. Mr Patterson was, in fact, concerned and sympathetic.
235 In a letter to Mr Patterson in September 2007, Ms Dye thanked him for his recognition of her work and referred to him as a “conscionable mentor”. I think that was her view at the time. In cross-examination, although preserving an accusation of “disgraceful” behaviour in early 2006, Ms Dye said that at least from September 2006 to September 2007 Mr Patterson acted conscionably and with honesty and integrity, gave her assistance and was trying to help her. At this point in her evidence Ms Dye, and her counsel, had apparently decided that she would make no assertion against Mr Patterson concerning some events in 2007 which had been included in her statement to the NSW police in 2009. That position changed, perhaps when it was appreciated that part of the medical opinion to be referred to and relied on in the proceedings referred to an alleged assault in April 2007. It will be necessary to explain how leave was sought and granted for Ms Dye’s evidence in chief to be re-opened to make this allegation. However, at this stage in the proceedings, Ms Dye’s position was that Mr Patterson was free of any criticism from her at least from September 2006 to September 2007 and, indeed, he had acted honourably and in a way which helped her greatly. That position is significant for two matters. First, if true, it falsifies in advance the
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allegation that Ms Dye and her counsel elected to make after her cross examination had finished. Secondly, it is instructive to see, in due course, what happened with Mr Patterson after September 2007 which might have caused Ms Dye to limit her (temporary) accolades to a period ending at that time. As will be seen, Ms Dye came to think that Mr Patterson had withdrawn his co-operation from her and she (with the advice of her then representatives) turned on him savagely.
236 I am satisfied that the true position was that Mr Patterson was during the whole of this period, as he had always been, Ms Dye’s friend, supporter and adviser. He did act honourably and he acted generously. He deserved much better than the course taken by the present litigation or the earlier accusations against him.
237 It may never be possible for the stain on Mr Patterson’s reputation caused by the smear constituted by Ms Dye’s accusations to be completely removed. However, I feel that I should make it as clear as I can that, in my view, based on the evidence in the present proceedings, there was no relevant factual foundation for those accusations and they were, to Ms Dye’s certain knowledge, not true. It follows that they were falsely made. It also follows from the nature of the allegations, the circumstances in which they were first made and the way in which they were repeated on Ms Dye’s solemn affirmation in the present proceedings that not only were they falsely made, but they were malicious. They appear to have been the result of a venomous desire for revenge for some perceived failure on Mr Patterson’s part to champion Ms Dye’s cause. So far as the present proceedings are concerned they were devoid of credit.
Reporting to Ms Bayer-Rosmarin
238 Ms Bayer-Rosmarin was appointed as General Manager (level 4), Business Development for PBS at about the beginning of August 2006. Perhaps Ms Dye sensed that change was in the air, or perhaps she was simply attuned to the possibility of advancement. On 3 August 2006, she sent a congratulatory email to Ms Bayer-Rosmarin expressing her interest in joining her, saying she currently reported to Mr Patterson. On 15 August 2006, Ms Dye sent another email to Ms Bayer-Rosmarin, again expressing interest in moving “back into marketing” and observing that her role with Mr Patterson was “project based”.
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239 When Mr Patterson’s responsibilities changed, those reporting to him including Ms Dye began to report to Ms Bayer-Rosmarin. Ms Dye was not prepared to accept, in her evidence, that this was her reporting line but her refusal to do so not only denied reality but was falsified by her own conduct at the time and by contemporaneous records. The changes appear to coincide with Ms Chapman’s arrival on about 1 September 2006. On 4 September 2006, Ms Bayer-Rosmarin sent an email to her group, including Ms Dye, foreshadowing further developments. Ms Dye seems to have seen these changes as providing some opportunity for promotion. On 8 September 2006, she suggested herself to Ms Bayer- Rosmarin as an executive manager (level 3). The following working day, Ms Bayer- Rosmarin responded non-committally. On 8 September 2006 also, Ms Dye drew herself to Ms Chapman’s attention, saying she would be reporting to Ms Bayer-Rosmarin from 11 September 2006 (the next working day). On Monday 11 September 2006, Ms Dye by email told another, more senior, manager that she now reported to Ms Bayer-Rosmarin. The matter is beyond argument. Ms Dye’s denial of the reporting line is inexplicable and quite unwarranted. It is yet another example of her refusal to tell the truth.
240 On 19 September 2006, Ms Bayer-Rosmarin assigned everybody in her group to teams, each with an “interim” manager. Ms Dye was assigned to such a team. She was not an interim manager. What may have made things worse for her was that her name appeared last on the list for her team. Two days later, Ms Dye saw Dr Grewal again. Her previous visit to him had been in March 2006. Another day later she spoke with Dr Horiuchi at the same practice who reported “suicidal ideation”. About two weeks later, Dr Grewal referred Ms Dye to Dr Parmegiani referring to “depressive and anxiety feelings regarding her employment”, although Ms Dye did not actually see Dr Parmegiani until the following year.
241 The objective circumstances are consistent, as noted earlier, with the fact that Ms Dye was prone to become anxious about her status and perhaps tended towards depression when she felt she was not sufficiently recognised by others. There is no support, however, in those circumstances for any suggestion that Ms Dye was subject to sexual harassment by anybody at the bank.
242 Ms Dye remained with Ms Bayer-Rosmarin’s group until early November 2006, but she was clearly testing the waters elsewhere. One line of approach was to Mr Selvarajah, who she lobbied fairly consistently. Another approach was to Macquarie Bank. An
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application for a position at Macquarie Bank appears to have been made on or shortly before 17 October 2006. In due course, Ms Dye attended some interviews but was ultimately unsuccessful. However, she kept this application on foot until she was advised of that fact, and during some of the events at LBB which follow.
Going to work in Local Business Banking
243 On 30 June 2006, after the settlement with Mr Patterson, Ms Dye met with Mr Blomfield and read some statements to him from notes she had made for that purpose. This seems a curious, and not at all spontaneous, approach to take but it appears to have been part of Ms Dye’s technique of mapping things out in advance. Amongst the statements she read to him were: “I look up to you. I hope one day to work for you. Whether or not you value my contribution, I hope that you will accept any continued efforts to support your business. It’s the work I enjoy the most.”
244 This happened only a fortnight after the events at Le Chifley on 15 June 2006. It is another indication that Ms Dye’s attitude to Mr Blomfield was not at all as she attempted to portray in her evidence. Mr Blomfield said he found Ms Dye’s conduct strange. However, he accepted her statements at face value. At this stage, Ms Dye’s direct request for a job with and close to Mr Blomfield had not achieved its objective. She was secure again in her job with Mr Patterson, if that had ever been in doubt (which I do not accept). Nevertheless, Ms Dye did appear to make a point to Mr Blomfield of reminding him of her continued interest in working for him.
245 Mr Selvarajah was promoted on 28 July 2006 from CommSec to a position in LBB as General Manager – Mid Eastern Australia (level 4). In this position, Mr Selvarajah was responsible for LBB activities in NSW and the ACT and again reported directly to Mr Blomfield as he had done at CommSec. Mr Selvarajah’s evidence was that on about three occasions in the period from August to October 2006 Ms Dye lobbied him for a job.
246 On a number of occasions during September and October 2006 Ms Dye contacted Mr Blomfield to discuss with him whether she should apply for various jobs within the bank. Those contacts would have had the effect of indicating to him that she was available and were perhaps designed to keep that in his mind. For example, on 8 September 2006, Ms Dye sent Mr Blomfield an email which said:
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Hi Michael – I was disappointed to hear that you’ve already chosen your marketing support! As always, happy to help if your team needs extra hands in the future.
247 These approaches appear to have had no particular significance for Mr Blomfield, although no doubt Mr Selvarajah’s later indication to him that he was contemplating Ms Dye as his business analyst would have fitted with what he already knew.
248 Ms Dye appears to have also begun looking further afield. About, or shortly before, 17 October 2006 she applied for a job with Macquarie Bank. She attended a first interview some time in the week commencing 22 October 2006. In a chance conversation with Mr Blomfield on 25 October 2006 she mentioned her application to Macquarie Bank to Mr Blomfield. Their evidence about the conversation differed, although Mr Blomfield accepted that he probably, at least in principle, expressed his regret at losing staff to a competitor. Ms Dye may have taken his remark as indicating more direct support than that, but I accept Mr Blomfield’s evidence that this was not his intention and had no particular bearing on what happened shortly thereafter.
249 In late October 2006, Mr Selvarajah discussed with Mr Blomfield his need for assistance and obtained Mr Blomfield’s approval to engage a business analyst for LBB Mid- East reporting to him (Mr Selvarajah). According to Mr Selvarajah, who knew Ms Dye was very interested in a position in LBB, she was his third choice, but soon the first two were ruled out for other reasons. He suggested Ms Dye to Mr Blomfield. Mr Blomfield’s evidence was that he put aside his reservations and agreed. Ms Dye nominated, as referees, Ms Bayer-Rosmarin and Mr Patterson as her last two managers. Ms Dye was offered and accepted the position. Ms Dye started work in LBB on Monday 6 November 2006. Later that day, Mr Blomfield’s personal assistant, Ms Bayada, sent Ms Dye an email to which were attached some organisation charts. Amongst other things they showed, as at 31 October 2006, the vacant position of business analyst reporting to Mr Selvarajah to which Ms Dye had been appointed and in which position she had commenced that day. The position, like Mr Selvarajah’s executive assistant, was shown to report directly to him. The organisation charts also show that as at 31 October 2006 five positions of general manager, including Ms James, Mr Selvarajah and Mr Tanner, and three positions of executive managers, reported to Mr Blomfield. The positions occupied by Mr Selvarajah, Ms James and Mr Tanner were based in Sydney. The organisation charts also showed those persons who reported, directly or
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indirectly, to Ms James and Mr Tanner. Ms Dye was not one of them; her position reported to Mr Selvarajah.
250 Ms Dye had obviously told a colleague that she had a new role. In an email exchange on 9 November 2006, Ms Dye told this colleague: “I’ve been hired by Michael Blomfield as the Executive Analyst to his three GMs in Local Business Banking. Lots of fun!!” This communication is replete with errors. It misstates the position to which Ms Dye was appointed. It misstates who engaged her. It misrepresents the responsibilities of the position, not to mention being inaccurate about the organisational structure of LBB. Ms Dye was appointed to assist Mr Selvarajah. In that position her services were made available for some specific tasks to Ms James and Mr Tanner. That did not change either her basic role or her reporting line. She was a business analyst who reported to Mr Selvarajah. It is impossible to resist the conclusion that Ms Dye was attempting to “big-note” herself. Regrettably, that is a characteristic which emerges from many of her communications and also from the evidence that she gave in the present proceedings where she was at pains to overstate and exaggerate the level of her contribution in various areas and the importance of the work which she performed. The tendency was to manifest itself in a conflict shortly after Ms Dye took up her new role.
251 In 2006, Ms Maiden was a communications adviser who reported to Ms Jill Valentine. Within the bank she had three “clients” who were also heads of business units. One was Mr Blomfield as head of LBB. At this time Ms Maiden was a level 2 employee. In early November 2006, Ms Maiden was in the process of working on a communications plan for Mr Blomfield. The communications plan was essentially concerned with communications with the staff of LBB. Many business decisions were still being taken and implemented and there were a number of business decisions which needed to be completed before the plan could be finalised. On 10 November 2006, in her first working week in LBB, Ms Dye requested a copy of the LBB communications plan which had not then been finalised. Ms Maiden sent Ms Dye advice that the plan was not finished. Ms Dye asked for a meeting. The meeting occurred on 16 November 2006. At this time Ms Dye was doing some work for Ms James concerning a telephony system project. A communication plan for that module of change was part of the broader change taking place in LBB. During the meeting, Ms Maiden attempted to explain to Ms Dye the reasons why the overall communications plan, which she was developing with Mr Blomfield, was not yet complete. Ms Maiden’s evidence, which I
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accept, was that Ms Dye began to shout at her, emphasising her own responsibilities and indicating that she would not permit Ms Maiden to obstruct her. When Ms Maiden asked Ms Dye to explain what her role was in that respect Ms Dye said: “I am Michael’s right hand woman. My job is to catch the ball when he drops it”, and went on to instruct Ms Maiden that she (Ms Maiden) was thereafter to deal exclusively to deal with her (Ms Dye).
252 Ms Maiden was upset. The next day she spoke to her manager, Ms Valentine, who informed her that she had already received a complaint from Ms Dye about Ms Maiden. In an email to Ms Valentine on 17 November 2006 Ms Dye in fact asserted that she had “engaged” Ms Maiden to develop the communications strategy for the LBB Training/Comms/Culture program. This appears to be a serious mis-statement of the position and of Ms Dye’s and Ms Maiden’s respective roles. Nevertheless, Ms Maiden attempted to assist co-operatively and the following week was in a position to send Ms Dye a draft plan. In early December 2006, Ms Dye proposed another meeting. Ms Maiden took the view that the matters on which they were each working were not identical, she had reservations about a further face-to-face meeting with Ms Dye and she informed her that she wished to focus on her own discussions with Mr Blomfield for the time being. Ms Dye again complained to Ms Valentine, suggesting that Ms Maiden’s obligation was to assist her (Ms Dye) with the development of the plan. Looking at matters now from an external perspective, this seems to have been all quite misplaced and manipulative. Ms Valentine, for her part, did not seem to think it appropriate either. She sent copies of some of the communications to Mr Blomfield and spoke with him about it. Mr Blomfield confirmed that Ms Maiden should pursue the work which she was doing for him. In Mr Blomfield’s evidence, he said that Ms Dye was acting outside her own role and he described the tone of her email communications as “very high-handed and quite rude”.
253 At the time Ms Dye came to work in LBB, Ms Maiden had been working in co- operation with Mr Blomfield and for other “clients” for some months. Whether in an attempt to assert herself in relation to the work she was asked to do by Ms James or whether in some misguided attempt to assert herself as close to Mr Blomfield, Ms Dye, I conclude, acted towards Ms Maiden in a very assertive fashion. Ms Maiden said she had “alarm bells going off”. At this stage, Ms Dye had been working in LBB for 11 days. Her conduct appears to have been a power play of some sort. It was viewed by those involved as inappropriate. It was ultimately ineffective. Ms Maiden’s evidence provides an example of the fact that when
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she went to work in LBB Ms Dye almost immediately commenced to alienate those with whom she worked by her attitude, her manner, misrepresentation of the factual position and her apparent misunderstanding of the significance and reality of her own position.
254 These are all matters which should ordinarily be assessed and managed within the appropriate organisational setting, rather than in legal proceedings. I am not concerned to analyse the issue further, although I accept the evidence given by Mr Blomfield and Ms Maiden in clear preference to the evidence given by Ms Dye. What these matters demonstrate is that there was a lively perception, for which there is adequate objective support, that Ms Dye’s personal style was not universally appreciated and was often counterproductive. There is certainly adequate material to support the criticism that Ms Dye not infrequently misrepresented her own responsibilities and the facts.
255 Apart from her difficulties with Ms Maiden which appear to have been caused, so far as I can tell from the evidence given in the proceedings, by Ms Dye’s misplaced view of her own role, Ms Dye, it would appear, had difficulty also in her relations with other staff in LBB, particularly the two women who reported directly to Mr Blomfield. Mr Blomfield had a high opinion of these two young women. Ms Bayada, his personal assistant, had been his executive assistant at CommSec. Mr Blomfield described her as friendly, positive and bright. He said she was a delight to work with and there was never a complaint about her by anyone to his knowledge. Ms Cobie Bevan, his marketing support, he said was permanently upbeat and infectiously positive and he did not ever receive a complaint about her. However, Ms Dye’s response to them was apparently quite different. She felt that they were cold towards her and that they treated her badly.
256 I am satisfied that Ms Dye felt that, unlike Ms Bayada and Ms Bevan, she was not receiving the attention that she felt she deserved or that she desired from Mr Blomfield, although there was no particular reason why she should have received such attention. Mr Blomfield’s evidence was that he had no particular interest in the work being specifically done by Ms Dye except that it was part of the overall effort being made in the business which he was running. After Ms Dye commenced in LBB on 6 November 2006 there were not many occasions when Mr Blomfield had occasion to see her. He travelled interstate about two days a week and spent most of his time in meetings. He had no reason to interact with her for his own work. She did not sit directly outside his office. He could not see her while
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going in and out of his office or while she was sitting at her desk. When he went to the lift lobby he did not go past her desk. When he went to make himself a cup of tea it was his practice to walk on both sides of the floor to be seen by his staff generally. There were about 140 people on the floor of the building where they both worked of whom one-half to two- thirds reported directly or indirectly to him. Mr Blomfield said that, although he never intentionally ignored her, interaction with Ms Dye was rare. Ms Dye obviously did not share Mr Blomfield’s view that there was no reason for him to give her particular attention.
257 On 22 November 2006, Ms Dye made a large number of phone calls to her mother. They commenced at 6.43 am and continued throughout the day until 9.39 pm. Most were very short. Late in the day, less than three weeks after joining LBB, Ms Dye left a voicemail message for Mr Blomfield. The essence of her message was that she was “resigning” as she did not fit in. Mr Blomfield had gone to Brisbane to attend a conference dinner. He received the voicemail leaving the airport, travelling in a car with others. He sent a text message in response saying that he could ring but would not be able to do so until late and asked if that was alright. Ms Dye texted back that it was. Mr Blomfield rang her at about 11.30 pm Brisbane time. He had forgotten about the time difference. It was, accordingly, after midnight in Sydney. Ms Dye told him that she had “issues with some of the other girls in the office”. She alleged that Mr Blomfield was ignoring her. Mr Blomfield attempted to impress on Ms Dye that her concerns were without substance and that she should speak with Mr Selvarajah, to whom she reported.
258 Mr Blomfield’s telephone records show that he rang Ms Dye at 12.19 am (Sydney time) and that they spoke for 10 minutes. Ms Dye’s telephone records show that immediately after the telephone call with Mr Blomfield terminated she rang her mother. Ms Dye had a further 17 minute conversation with her mother at 2.09 am and rang her again at 3.05 am. Commencing at 8.01 am on 23 November 2006 Ms Dye rang her mother seven times within 25 minutes. She rang her consistently throughout the day. I infer from this pattern of communication with her mother that Ms Dye was concerned or anxious about something, but there is a further aspect which is convenient to mention now. Mrs Dye said in her evidence that she was in Ms Dye’s apartment in Sydney when Mr Blomfield made a late night telephone call to her on 22 November 2006. She was quite specific about that. She was confronted with the fact that telephone records show that there were numerous calls to her phone late that night and in the early morning. That would only be necessary if Mrs Dye was
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not in Sydney at all. Mrs Dye was forced to concede that she could not have been in Sydney that evening.
259 Mr Blomfield returned to Sydney on a 6.00 am flight from Brisbane on 23 November 2006. When he arrived at the office he asked Ms Dye to come and see him and enquired about her phone call. She told him again that she did not fit in and had problems with Ms Bayada and Ms Bevan. Mr Blomfield attempted to impress on her that she should deal with these matters through Mr Selvarajah.
260 I accept Mr Blomfield’s evidence that he was annoyed and exasperated by these events, that he felt that Ms Dye was not entitled to separate or special treatment from him and that he had no interest in pursuing her in any sense.
261 Ms Dye’s evidence in chief about Mr Blomfield’s late night telephone call to her was very unsatisfactory. She did not mention the prelude to the telephone call or disclose honestly the reason why it was made. The telephone call from Mr Blomfield to her was portrayed as a gratuitous intrusion upon Ms Dye’s privacy indicating some form of unwanted pursuit of her by Mr Blomfield. Stripped of its context and endowed with this characteristic, the evidence Ms Dye gave in chief was misleading to the point of falsehood. It was not until cross-examination that the true picture first emerged. The evidence in chief should not have given the false impression which it did, nor been led in that fashion.
262 In late November 2006, Mr Blomfield was told that Ms Dye had moved to another desk on a different part of the floor. Mr Blomfield said he was stunned by this conduct, that it was petulant and unnecessary. Mr Selvarajah had gone on personal leave the day before but Mr Blomfield rang him and directed him that Ms Dye was to move back to the position allocated to her. One aspect of this unauthorised move was that it would require either a change of telephone number or relocation of the phone number at the expense of Mr Blomfield’s division. Mr Selvarajah confirmed in his evidence that immediately after he heard of this occurrence he directed Ms Dye to return to her place.
263 Ms Dye’s dissatisfaction with the lack of attention given to her did not diminish. On 1 December 2006, she made an ostentatious gesture of turning away from Mr Blomfield when they passed at work. This incident is so trivial it deserves no further attention. I would
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not mention it at all except that it is part of a continuum of events arising from the same circumstances.
264 One of the initiatives which was taken after Mr Norris arrived was called the Business Banking Growth Strategy (“BBGS”). This project was under the supervision of Mr Rowan Munchenberg. In her early work in LBB, Ms Dye had occasion to interact with people who, in one way or another, were involved in some of the BBGS activities. Mr Blomfield had asked Mr Selvarajah to be his representative on a working group (“BBGS working group”). Mr Selvarajah asked Ms Dye to act in his place as the LBB representative on the BBGS working group. The function of the representative, on the evidence in the proceedings, was that of co-ordinating the assembly and dissemination of material. The LBB representative was “a mail box” for the purpose of the BBGS working group. On 6 December 2006, Ms Dye appears to have first participated in the BBGS working group by telephone, although it may have been by accident as Ms Dye apparently thought she was joining a different teleconference. The next day, Mr Munchenberg thanked her for her participation and asked whether she would be the LBB representative. She replied referring to a diary note sent to her by Mr Selvarajah and saying that she would need to confirm this with him. That was Mr Selvarajah’s intention and Ms Dye continued to perform this function for a relatively short period.
265 A great deal was made in Ms Dye’s case of this role which she was asked by Mr Selvarajah to perform. She attempted to elevate it into a very important function with national responsibilities. Ms Dye attempted to portray her participation as a contribution to the overall strategic direction of the bank. She suggested, in effect, that this task represented a substantive position or role. I am satisfied that this was all an exaggeration. Furthermore, as events unfolded, it became apparent that Ms Dye’s actual contribution to the BBGS working group was short and ultimately of little ongoing value or relevance. Some such matters will be referred to in due course. However, 6 December 2006, one month after Ms Dye commenced in LBB, appears to mark the beginning of any contribution in this area, such as it was.
266 Mr Blomfield’s plans for LBB involved the launch of a new business plan on 5 February 2007. One of the people engaged to work on the development of aspects of the business plan was Ms James. Ms James was to oversee the establishment of a new national
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call centre. When Ms James was engaged it was necessary for her to build a team and hire staff. In the initial period she hired about 100 people. In November 2006, after Ms Dye had commenced to work in LBB, Ms James spoke to Mr Blomfield about some aspects of the communications and training development which was then taking place. Those matters also concerned work which was being done in part by Ms Maiden. Mr Blomfield told Ms James that Ms Dye might have some spare capacity and she should speak to Mr Selvarajah about whether her services could be made available. Ms James did so. The work which Ms Dye did in this connection was relevantly short lived as will become apparent.
267 Ms James confirmed that it was a very busy time in LBB and there was pressure to work towards a deadline. However she said the atmosphere was very collaborative and she found it exciting. She remembered an occasion in late November 2006 when Ms Maiden complained to her about the way that Ms Dye was speaking to her. She recalled that Ms Maiden said that Ms Dye’s tone and manner were abrupt and Ms Maiden did not want to keep working with her. Ms Maiden’s evidence and Mr Blomfield’s evidence each confirm that Mr Blomfield, for his part, was quite happy with the contribution Ms Maiden was making at the time and he did not share any view which Ms Dye might have held that Ms Maiden should direct her efforts through Ms Dye. On Ms James’ evidence not much progress before 8 December 2006 was made by Ms Dye on the task which she had been asked to carry out for Ms James. Ms Dye did not come to work on 8 December 2006. She did not come to work on 11 or 12 December 2006. She did not contact Ms James about the work she was doing for her. Ms James decided that she would not continue to have Ms Dye doing work for her and spoke to Mr Selvarajah to that effect. She explained in her evidence that she felt Ms Dye’s behaviour was equivalent to abandoning her work and did not want her in her team. Thereafter she did that work herself. Part of the difficulty in Ms Dye making progress with this task appeared to Ms James to have been related to Ms Dye’s problems interacting with other people. In January 2006, Ms James gave Ms Dye another task which was a stand-alone task which could be dealt with at her desk without the necessity to interact with people. On Ms James’ evidence Ms Dye did that job well.
268 Ms James gave her evidence in a straightforward and open manner. She seemed to me to give her evidence in all respects honestly based on her recollection. She did not demonstrate any apparent predisposition against Ms Dye and was prepared to give her credit where she thought credit was due. It was suggested in her cross examination that she gave
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false evidence. I reject this suggestion without hesitation. It is one of a number of suggestions made to anybody who criticised Ms Dye. I found them uniformly to be without substance.
269 In the initial period of her employment in LBB, Ms Dye was asked by Mr Selvarajah to involve herself in a spreadsheet exercise concerned with resegmentation (which involved reallocation of some clients to particular bankers or to a national call centre), prepare a sales campaign calendar for which he would supply the content and to analyse the “run off” of the “loan book” and seek to ascertain why it was happening. This was a reference to the tendency of clients not to renew their financial arrangements with the bank. Ms Dye was also asked to work out a budget for the Mid-East area. Mr Selvarajah confirmed that in mid to late November 2006 Ms James asked if Ms Dye could assist with an aspect of Ms James’ work and Mr Selvarajah agreed. Mr Selvarajah began before long to receive complaints about Ms Dye’s work and her attitude. She was regarded as rude and bossy by some of the other staff. There were occasions when she attempted to take control of small projects in which she seemed to have a particular, personal interest, such as awards events. At the same time, Ms Dye was showing petulance arising from her apparent perception that Mr Blomfield was not giving her enough attention. Mr Selvarajah said in his evidence that he was becoming concerned about these issues and trying to formulate in his mind how to manage things when a more direct issue arose on 7 December 2006.
270 On Thursday 7 December 2006, LBB Mid-East had a Christmas function. Ms Dye attended dressed in a way some might find alluring, but some witnesses thought provocative and inappropriate. Amongst other things, she showed above her close fitting pants a white fur G-string, presumably in keeping with the theme of the evening, which was “white”. I propose to say little about that. I am not concerned with Ms Dye’s dress sense or her taste. However, it is clear enough that Ms Dye felt no particular embarrassment about dressing in this way. Later she exchanged emails with other people making jokes about it. Her attire on this occasion is in keeping with other evidence which suggested that she has a very robust approach to both sexually suggestive and explicit matters. At one point in 2006, she freely discussed a sexual liaison with Mr Patterson in rather crude terms and in 2007 told him also that she had shortly before been with other women to see a live sex show. In my view, her sensibilities about such matters are not likely to be easily offended and certainly not by casual or unintended behaviour or remarks.
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271 During the evening, Ms Dye felt, apparently, that again she received insufficient attention from Mr Blomfield, both personally and when he gave credit to various people for work done during the previous months. Ms Dye was not included in his comments. At that stage she had been at LBB less than five weeks.
272 At 11.10 pm, some hours after the function began and shortly before it finished, she sent Mr Blomfield a text message which, all agree, said: “My respect for you is at an all time low”. Mr Blomfield showed it to Mr Selvarajah and, on his evidence, told him that as Ms Dye reported to him, he should deal with it. A short time later Ms Dye was seen sitting on a footpath. Some witnesses said she was crying, some said she was obviously affected by alcohol.
273 The text message was a foolish act. It appears to have been the result of Ms Dye’s desire for attention from Mr Blomfield and the fact that he did not respond in kind. To send a text message of that kind to a work superior invited some attention. That was inevitable. Ms Dye seemed, at least initially, to appreciate that was so. The following day (Friday 8 December 2006) Ms Dye did not come to work. She rang Mr Selvarajah. They had a conversation on the telephone. She immediately asked if she still had a job, in light of the text message, obviously appreciating that Mr Selvarajah would know about it. He told her she did. During their conversation, Mr Selvarajah told Ms Dye that sending such a text message was inappropriate. She complained to him that she was being excluded. Mr Selvarajah told her she needed to seriously consider whether she wanted to remain in LBB and she agreed to spend the weekend thinking about that question. She asked for, and was given, the rest of the day off.
274 Subsequently, Ms Dye attempted to contend, both during her employment with CommSec and later, that the text message to Mr Blomfield was a purely personal one, that Mr Blomfield had breached a confidence by showing it to Mr Selvarajah and that it was not a matter which Mr Selvarajah was entitled to take into account, or in any way respond to, so far as her employment was concerned. I reject that idea. It is quite apparent from Ms Dye’s own account that she fully appreciated at the time that what she had done was professionally unacceptable.
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275 On Monday 11 December 2006, Ms Dye again did not go to work, nor did she the following day. This is another practical example of Ms Dye’s reaction to workplace issues which involve a possible threat to the security of her position. On Tuesday 12 December 2006, Ms Dye and Mr Selvarajah had a meeting. Ms Dye wished to meet him outside the office. They met early that afternoon at the Bavarian Bier Café. Ms Dye told Mr Selvarajah that she wished to remain in LBB. There was a discussion about where her work efforts should be concentrated. To this point they had been directed, in part at least, towards some projects at a national level (particularly assisting Ms James and Mr Tanner) which were outside the particular activities of LBB Mid-East. Ms Dye asked to be relieved of the work she was doing for Mr Tanner and Ms James. Mr Selvarajah agreed to facilitate that. As it happened, that appeared to coincide with Ms James’ own view that she was no longer interested in Ms Dye working on the matters which had been allocated to her in November 2006.
276 On 13 December 2006, Mr Selvarajah prepared and forwarded to Mr Furlong in HR a file note of his two conversations with Ms Dye. They read as follows:
[Friday 8 December 2006]
1. Outlined to Viv that her behaviour on Thursday evening with respect to sending SMS messages to various members of senior mgt at LBB was inappropriate. 2. Told her to seriously consider if she wanted to be a part of LBB as she was not displaying the values that we have agreed as a business. 3. Told her that she was doing good work, but her behaviour was detracting from this work. 4. She relayed her concern of being excluded from the team. I responded by stating that there was no singling out of her in this this [sic] treatment and that there as no intent to exclude her. 5. She agreed to spend the weekend thinking about where she wanted to work and going forward.
[Tuesday 12 December 2006]
1. Met with Vivienne and she relayed that she wanted to remain in LBB and working for me supporting the Mid-East division. 2. She agreed that she would amend her behaviour and that she would focus on supporting Mid-East. 3. She requested some time to spend at the various LBB centres in Mid-East to better learn what each of our teams did and I agreed. 4. She also requested that she discontinue the projects that she was currently doing for Bernard Tanner and Karen James and I agreed that I would facilitate this. 5. I reiterated to her that if she continued her previous behaviour, then I would terminate her employment in LBB.
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277 Two matters might be noted immediately. First, the first entry in the file note for 8 December 2006 contains an error. It is acknowledged that there was only one text message and it was sent to Mr Blomfield. Secondly, any suggestion by Mr Selvarajah that he would terminate Ms Dye’s employment in LBB was subject to very strict limitations. He certainly had no authority to unilaterally terminate her employment in LBB or elsewhere. Nor did he have any authority to require her to be transferred. Either action would require much more formality than Mr Selvarajah seemed to appreciate at the time, but little significance need now be attached to that. It is clear enough that Mr Selvarajah was concerned to indicate to Ms Dye in substance (even if in procedurally incorrect terms) that a continuation of her behaviour would not be accepted. In fact, as later events demonstrated, Mr Selvarajah pursued the matter in due course with complete fidelity to the bank’s procedural requirements for dealing with unsatisfactory performance.
278 After sending his email to Mr Furlong, Mr Selvarajah sent an email to Ms Dye. He informed her that he had spoken already with Ms James to the effect that Ms Dye would hand over the work she had been doing for Ms James to someone else. He told her he would speak to Mr Tanner “to let him know that you are working on Mid-East stuff going forward”. He asked for an update on some of the other work she was doing. The next day, 14 December 2006, Mr Selvarajah advised Mr Blomfield that Ms Dye was “knuckling down” and complimented some work she had just done on a matter which remained within her responsibilities. However, Mr Selvarajah’s satisfaction with Ms Dye’s contribution was short lived. During January 2007, Ms Dye’s style of communication again created concern for Mr Selvarajah and Mr Blomfield. These matters came to a head in a meeting between Mr Selvarajah and Ms Dye on 1 February 2007. The matters he discussed with her concerned particular email communications during the previous month, which included a period when Mr Selvarajah had been absent on leave.
279 Before dealing with those matters, there is another exchange which deserves to be mentioned. Mr Selvarajah went on leave on 11 January 2007. Shortly before he did so he circulated an email to a number of people advising of some personnel changes. Ms Dye was one of the persons to whom the information was sent. The following morning, 12 January 2007, Ms Dye forwarded this email to Mr Tanner and complained to him that she was not invited to team events, that she was the last person to hear about major personnel changes, that she was feeling uncertain and upset. Ms Dye’s complaints that she was not invited to
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team events and was the last to hear about major personnel changes appear to have had no foundation in fact. Mr Tanner forwarded Ms Dye’s email to Mr Blomfield and Mr Selvarajah (who was by then on leave) saying:
“Oh dear! I will deal with this, along the lines of get over it or get out. Arnie enjoy the break.”
280 A short time later Mr Blomfield replied to Mr Tanner saying: “Get her out.”
281 In his evidence, Mr Blomfield described this response as the result of exasperation and great annoyance on his part. From his perspective Ms Dye had come into his business, upset the staff around her and support staff whose co-operation was necessary to achieve the timetable he had set for a relaunch of the business, done little but complain and seek attention and he was at the limit of his patience with her. It was suggested as part of Ms Dye’s case that events thereafter, including the ultimate declaration that Ms Dye’s position was redundant, merely reflected and gave effect to Mr Blomfield’s determination to get rid of her at all costs. I reject this contention. I accept Mr Blomfield’s explanation that his response was the result of frustration and annoyance on his part but nothing else. Mr Blomfield, also, did not have the power to simply bring Ms Dye’s employment to an end. Neither, I am satisfied, did he set out to do so in any clandestine or illegitimate manner. In fact, as events shortly afterwards demonstrate, all these concerns about Ms Dye’s performance faded from immediate attention when she went, the following month, on an extended period of absence.
282 On 24 January 2007, Ms Dye engaged in another email exchange in which she was critical of the work being done by other people. As part of the exchange, which her comments generated, she made a barely concealed suggestion that one particular proposed advertising campaign was intended to disguise or cover up earlier poor judgments. This email exchange concerned people outside LBB and was circulated outside LBB. It provoked criticism of LBB, and its collaboration with those areas of the bank from whom it was seeking support. Evidently this was drawn to Ms Dye’s attention and she attempted to apologise, suggesting that she was merely intending “to stimulate healthy debate” and that Mr Blomfield “has told us all that we’re far too polite in this organisation and that he wants to see this change”. Mr Blomfield was dismayed by this exchange. Mr Selvarajah became concerned also.
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283 On 30 January 2007, Ms Dye wrote a complaining email about the title which one of Mr Blomfield’s staff had been given (“business analyst”, like Ms Dye) suggesting that the title of that position was inappropriate. She asserted to Ms Bayada: “Analyst job titles are not given to administrative roles. As an analyst, I obviously feel very strongly about this”. This seems to have been some form of misplaced elitism. Ms Bayada responded that there was “far too much angst over something like this”.
284 When Mr Selvarajah returned from leave at about this time he sought advice from Mr Carroll about how he should manage the situation from an HR point of view. He provided Mr Carroll with a copy of his earlier file notes. Mr Carroll responded with some specific suggestions for him in the following terms:
Hello Arnie,
Those notes are quite clear and those discussions should have left Vivienne in no doubt as to what your expectations are.
In todays discussions I suggest you simply refer back to the December meeting/phone call, state your current observations (with examples) and ask Vivienne for her response. Was she unclear of your expectations? Did she not understand? And, if she did understand then – Why hasn’t she improved her behaviours? Does Vivienne need more assistance/guidance to improve? How can we (Arnie) assist her to improve?
After discussing the issues, noting her responses and asking for input on suitable options you should document what happened. It is best if Vivienne is provided with a copy of your note of the discussion and she returns a signed copy to you. You could then let Vivienne know that she must improve and you will allow her another fortnight to display that improvement. If no improvement the [sic] refer to the link below, and scroll down to the heading If performance does not Meet Expectations
http://commnet.cba/peopleconnect/career/performancemanagement/continuous_impr ovement/managers.aspx
Please let me know if [you] require any further involvement/advice from me.
Regards Mick C.
285 In this email, and perhaps in his oral advice, Mr Carroll drew Mr Selvarajah’s attention to the bank’s continuous improvement policy. It is clear from events thereafter that Mr Selvarajah attempted to deal with Ms Dye in accordance with this policy. The policy contained a number of progressive stages. I do not regard it as contractual in nature but it
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would make no difference if it was because in substance, as will become clear, there was no deviation from its features (or requirements if they be regarded as such).
286 The bank’s continuous improvement policy was based upon the premise that performance could be improved even if meeting or exceeding expectations. It included suggestions for encouraging further improvement where performance was meeting or exceeding expectations and included procedures for addressing circumstances where performance was not meeting the expectations of a role, whether in outcomes or behaviours. Where performance did not meet expectations it stated:
The desired outcome is that the team member improves performance so that after a couple of months they meet all expectations in respect of both outcomes and behaviours.
287 The following guidance was given:
Once you have identified that a team member’s performance needs to improve in an area, you should raise the matter promptly. Action can be taken at any time through meaningful feedback and coaching, i.e. do not wait for a six monthly review.
288 Managers were advised to meet with the team member and raise the issue, specifically disclose the reasons why an improvement in outcomes or behaviours was needed, provide an opportunity to respond, consider ways to improve performance, monitor progress and keep a note of key decisions. Various techniques were suggested as available including considering an alternative role and coaching. Coaching might itself include various techniques such as directing, guiding and exciting the team member’s interest.
289 If, after an appropriate opportunity for performance improvement had been given, a team member still did not meet expectations the policy contemplated a more formal discussion about performance and the consequences of continuing to fail to meet expectations. In that event the following four steps were set out:
Step 1: Set up a meeting … ▪ Arrange a discussion with the team member. ▪ Inform them that the purpose of the meeting is to discuss their ongoing poor performance and possible consequences. ▪ Suggest that the team member may choose to bring a support person to the meeting whose role is that of an observer only. ▪ Keep a note of the arrangements discussed.
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Step 2: During the meeting … ▪ Re-state to the team member the expectations of the role with specific reference to the Performance Plan. Clarify your expectations by using specific examples. Provide the team member with an opportunity to respond to the issues that you have raised. ▪ Discuss with the team member a specific opportunity to improve performance and meet expectations. This could relate to a timeframe or a set of tasks. The length of any timeframe set will vary depending on the role and history. (If performance problems are addressed promptly the process should be completed in 1 to 2 months). ▪ Warn the team member that unless they meet expectations within the opportunity provided they may be dismissed.
Step 3: After the meeting … ▪ Immediately write to the team member confirming: º the reason for the discussion; º the opportunity and actions that must follow; and º the warning that continued failure to meet expectations is likely to lead to dismissal.
Step 4: Coaching and monitoring … ▪ Continue coaching and monitoring performance based on the discussion/outcomes from Step 2 above.
290 This (third) stage of the continuous improvement process (i.e. the more formal discussion) was never reached in Ms Dye’s case. There are a number of indicators that this is so. First, after the engagement of Mr Carroll’s assistance and his advice to Mr Selvarajah it must be assumed that Mr Selvarajah proposed to follow the continuous improvement policy. In any event, the management of Ms Dye’s employment in any formal sense was not under the control of Mr Selvarajah or Mr Blomfield, or LBB as a division. It was ultimately under the control of the bank’s HR department. Secondly, no point was ever reached where Ms Dye was informed in advance that the purpose of a particular meeting was to discuss possible consequences. Thirdly, it was never suggested that she may choose to bring a support person to a meeting as an observer. Fourthly, Mr Selvarajah did not ever write to Ms Dye warning her that continued failure to meet expectations was likely to (or even might) lead to dismissal from her employment. It follows from the absence of these indicators that, so far as the continuous improvement policy was concerned, Ms Dye was in the stage of the policy where improvement was expected, but her performance was not at that stage regarded as inconsistent with continued employment. These processes were not the same processes as those involved in the periodic (generally annual) performance reviews, which were formally required for consideration of bonus payments, amongst other things. Depending upon the nature of the underperformance identified, and the rapidity with which it was remedied, there seems to have been adequate scope for an employee to retain a “meet expectations” rating for
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the purpose of bonus payment even if at some point during the preceding 12 months some coaching to lift performance had been necessary and had been undertaken. I mention these matters because there was a good deal of fascination in Ms Dye’s case with the idea that she had been “put on CIP”, or alternatively “not put on CIP”, at various stages by Mr Selvarajah. I regard such an approach as not reflecting the terms or evident purpose of the continuous improvement policy. Perhaps the misunderstanding was shared at one stage by Mr Selvarajah. That is no longer important. What is clear from a comparison between the continuous improvement policy and Mr Selvarajah’s actions is that he intended to act in conformity with the continuous improvement policy and he never moved beyond the initial response contemplated by that policy to Ms Dye having been identified as not meeting expectations.
291 Ms Dye and Mr Selvarajah met early on 1 February 2007. After their meeting, Mr Selvarajah made a further file note. It read as follows:
I informed Vivienne (VLD) that this was a performance discussion. I reminded her that we had a discussion in December about her behaviour and specifically around the issues contained in the previous file note. I covered each of the points covered in the previous file note. VLD confirmed that the discussion took place and that she remembered the content of the discussion. I then raised the issue of the continued poor behaviour and provided specific examples to her of emails that she had sent to various employees of CBA. I also explained to her the impact that those emails had on the recipients as well as the negative impact on the various other departments. Explained to VLD that this behaviour was not consistent with LBB’s values and had affected the level of cooperation we would receive from our business partners within CBA. I asked her for her thoughts on what we had been discussing. VLD explained to me that she was just trying to do her job and she did not see any problems with the emails. She asked if I could point out the specific problems with the emails. I went through some of her phrases used and suggested that if she wanted, I would analyse them and provide her with more detailed feedback. I reminded her that I had suggested in our meeting in December that she should direct any of these issues to me and I would liaise with these areas if further action was required. She agreed that I had said that but also indicated that I had agreed for her to communicate directly with Dominic Brandon. I agreed that I had said this. I asked her to think about what she wanted to do going forward and she agreed that she would do that. I told her that I would be giving her a Needs Improvement rating in her PF&R for the December half given this poor continuing behaviour and that she would be put on a performance management plan.
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292 In the afternoon of 1 February 2007, Ms Dye sent Mr Selvarajah an email in the following terms:
Hi Arnie, Our conversation this morning has very much come as a surprise to me and I’d like to do my best to make a career path in Local Business Banking. I feel passionately about the Commonwealth Bank and I truly believe that, as Ralph Norris has said, our success will come from our ability to turn things around in the small business segment. I feel that I can be a good personality fit in this business unit and that I could be regarded by my fellow colleagues as someone who they can go to for help and guidance, on any issue that I might be able to offer assistance with. In my tasks as intermediary to other business units, I feel I have maintained the strong relationships which I brought with me from my former roles. I’d very much like to try to make my role work in Local Business Banking and would really appreciate it if you could spare some time to explain to me in more detail, how I can improve. From our conversation this morning, it’s become clear to me that I’ve not understood the appropriate way to communicate with other people at work and I would very much appreciate your ongoing guidance in this regard. Regards, Vivienne
293 Mr Selvarajah sent this email to Mr Blomfield and, the next day, to Mr Carroll. Ms Dye’s apparent acceptance that her communication with others left something to be desired was, if sincere at the time, short lived. She quickly thereafter adopted the position that there was no legitimate room for criticism of her communications as Mr Selvarajah had suggested. Ms Dye had been provided with copies of three specific emails which Mr Selvarajah felt represented inappropriate communications, either in content or in style. Part of his concern related to the way Ms Dye communicated with other areas in the bank whose collaboration and cooperation was required in achieving objectives for LBB, and part of his concern was how Ms Dye dealt with other LBB staff, including Ms Bayada. I do not propose to attempt any independent analysis of the merits of Ms Dye’s position with respect to any of these matters. It is abundantly clear that she was informed of concerns about the way in which she communicated with other people and provided with details and examples. There is little doubt that her style of communication would easily be seen as high-handed and directive. According to the evidence of Mr Blomfield and Mr Selvarajah, any such position on her part was quite misplaced having regard to her level of seniority and her own responsibilities. These are matters which fell for the judgment of Ms Dye’s superiors. When they were drawn to Ms Dye’s attention she had choices to make concerning whether she would attempt to meet the indications being given to her and the requirement for an alteration in the style of her communication. If she chose to contest such matters, that was a choice which was open
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to her but it does not lead to any legal consequence or anything of other than historical interest so far as the present proceedings are concerned. Ultimately the question is whether it can be said that Mr Selvarajah or anybody else acted outside the limits of Ms Dye’s contract of employment or in a way which gave rise to any legal relief. That did not happen on the evidence in the present case.
294 Ms Dye’s choices obviously included contesting the criticism made of her. She sent Mr Carroll her own “file notes” of the discussions on 8 and 12 December 2006. Mr Carroll forwarded them to Mr Selvarajah who characterised them, in part, as “fabrications”.
295 On 12 February 2007, Ms Dye sent a formal email to Mr Furlong “to ask for the assistance of LBB Human Resources”. She made an attack on Mr Selvarajah. She made a series of other complaints about the way she was treated in LBB.
296 Later that day, Ms Dye sent an email to Mr Blomfield entitled “Request to MOR [manager once removed] for In Line Review”. In this email she also attacked Mr Selvarajah. She made a series of statements which merit specific mention. For example, she said:
I consider the ‘tone of my emails’, which Arnie has stated as being unacceptable, to be a red- herring. To my mind, these emails are examples of fine business acumen, albeit not commonly exhibited by women in business. I believe the content of these emails exposes the negative impact of managerial hoarding of information. I believe that ‘Saying the Unsayable’ for the benefit of our business, ought to be rewarded and not punished.
297 This was a curious statement to make to the head of the business division. Mr Blomfield did not share this assessment. Ms Dye also said:
Four months ago I was offered a position with Macquarie Bank, and on hearing this, you offered me an alternative position within your business which I accepted in preference.
298 This statement contained multiple falsehoods. Ms Dye had not been offered a position with Macquarie Bank. She had made an application for a position with Macquarie Bank and attended three interviews during a period when she kept her application alive notwithstanding that she had been offered the position in LBB and had accepted it. She was finally informed in January 2007 that her application to Macquarie Bank had been unsuccessful. She had not been offered a position by Mr Blomfield and it was not offered as an alternative to any possible position with Macquarie Bank. Ms Dye also said:
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I am an employee of Local Business Banking who was hand picked by the Executive General Manager [i.e. Mr Blomfield himself], and I believe that I am now the subject of an unwarranted political attack from your two former CommSec employees [Mr Selvarajah and Ms Bayada]. I will not stand by and let Arnie Selvarajah sell my career down the river. I will not be his victim.
299 Ms Dye was not hand picked by Mr Blomfield. Any belief on her part to that effect disclosed a lack of contact with reality. No doubt it disclosed a more deep seated problem, which is a sounder explanation for the difficulties that developed in her relationship with Mr Blomfield than any suggestion that she was the victim of an unwarranted attack by Mr Selvarajah.
300 Under the bank’s procedures, Ms Dye was entitled to bring complaints about her manager to the attention of her manager once removed, who was Mr Blomfield. Mr Blomfield came to the view that it would be inappropriate for him to deal with the complaints in a formal way and that it would be better for Ms Dye to initiate an “out of line” review so the matter could be examined by somebody independent of Mr Blomfield, Mr Selvarajah and Ms Dye. A short time later this is the procedure which was followed. However, as an immediate response to Ms Dye’s email and arising from his concern about the more general implications of Ms Dye’s behaviour, Mr Blomfield had a discussion with Ms Dye on 15 February 2007 in which he attempted to explain his concern about the nature of some of her email communications. Some of those had been forwarded to him and others had come to his attention. In his evidence in the proceedings, Mr Blomfield said, and I accept, that he had received a number of complaints about Ms Dye’s behaviour, in particular the way in which she spoke to other staff both by email and in person. Ms Dye for her own part told Mr Blomfield that Mr Selvarajah was a poor manager and that whatever poor performance she was being accused of was either Mr Selvarajah’s fault or the fault of Ms Bayada or Ms Bevan. She was disparaging about Ms Bayada and Ms Bevan, calling them “the girls”, and said she was not there just to be some “admin hack”. Ms Bayada and Ms Bevan were at the same level as Ms Dye (level 2) and Mr Blomfield thought her attitude and approach inappropriate. He also expressed his dissatisfaction with the tone of her email communications with areas in the bank with which LBB needed to work. His evidence was that he said to Ms Dye: “This is causing me damage and this has to stop”.
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301 Mr Blomfield, in his evidence, gave a specific example, drawing upon one of the email communications which he discussed with Ms Dye. Arising from her communication a senior officer of the bank had indicated his concern to the head of marketing for the bank saying, pithily:
Mark,
FYI … getting collaboration with LBB is a challenge.
There is nothing wrong with fair debate but the tone of their communication is another matter.
Dom
302 This was a reference to statements by Ms Dye in her email. In his evidence, Mr Blomfield was asked about this email and its contents and gave the following response:
MR GRAY: Subsequently when you did see it, what was your reaction?---My reaction was, “This is exactly what I feared”, which is that Dominic, who knew me very, very, very well – I had hired him into the firm – had, on the basis of this email, not come to me for a friendly chat, but had escalated this to the bank’s – to the head of marketing for the entire bank, and not just that, but he says here that getting collaboration with my division is a challenge, not with Ms Dye, but my division, and this is [a] really strong example of the damage that people can do when they behave this way inside a big organisation.
303 It is unnecessary to attempt any independent assessment, as I said earlier, of whether Mr Blomfield’s concerns were justified or not, although I have no reason at all to think that they were not. The immediate point of relevance is that Mr Blomfield, as the head of LBB, was concerned about Ms Dye’s communication, he had evidence before him that her communication style was reflecting badly upon his division and indirectly upon his leadership, he raised the issues directly with Ms Dye and he was entitled to a constructive response from her. Although, of course, she could choose to contest his assessment, there would be little point in doing so upon the basis that it was outside his discretion to raise the matter with her or to form the view which he did. That position does not change simply because the issues have now been ventilated in the proceedings. These were management issues which were, and remain, matters of managerial discretion. Assessment of performance under the bank’s continuous improvement policy was a matter for the bank and its officers. The policy was in place to permit steps to be taken to change performance which was perceived to be inadequate. Ms Dye’s performance came into this category. Mr Selvarajah and Mr Blomfield were entitled, in accordance with the policy, to seek a change in her
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behaviour. If she chose to contest their judgment her options were limited but, such as they were, she apparently decided to exercise them.
304 At some point in this meeting, Mr Blomfield asked Ms Dye what she wished to be done to resolve the complaint which she had made to him in writing. He wrote down what she said. The list had eight items. They read as follows:
1. Change reporting line 2. Ensure VLD [Ms Dye] gets coaching on the work that she is doing at the moment 3. Map out a potential career path & help her get there. Wants to be my COO. [Chief Operating Officer] 4. Pay rise $95 [thousand]→$130 [thousand] 5. Someone to do conflict resolution ŵ CB [Ms Bevan] 6. Help VLD develop a relationship ŵ LB [Ms Bayada] 7. Be nice to VLD 8. A hug
305 This statement by Ms Dye of her desired outcomes showed a serious lack of appreciation of her circumstances. It contained no acknowledgement at all of the matters which were causing concern and which by now had been discussed with her quite specifically by both Mr Selvarajah and by Mr Blomfield. It revealed that Ms Dye wished to take up a position in close contact with Mr Blomfield and appeared to expect him to help her achieve her objective. It, astonishingly, suggested that she was entitled to a very substantial pay rise (over 30%). The final request is almost bizarre in the serious circumstances that Ms Dye faced and about which she appeared to show no real appreciation.
306 Mr Blomfield’s response was that none of her concerns could be addressed by him until a review was conducted by someone else of Ms Dye’s complaints. He did say to Ms Dye, however, that if at the end of that process it was determined that Mr Selvarajah had acted inappropriately he would be shown the door.
307 On 19 February 2007, Mr Blomfield and Ms Dye met with Mr Carroll. Ms Dye indicated that she wanted an in line review. Mr Blomfield explained why he was unwilling to do such a review of complaints about Mr Selvarajah. The alternative was an out of line review. At the end of the meeting the matter was left with Ms Dye to make a decision about what she wanted to do. The same day Mr Carroll forwarded by email an electronic link to information concerning the out of line review process and a link to the form which would need to be completed if Ms Dye wished to proceed in that fashion. Later in the day he sent
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her a similar link to information about the continuous improvement program. The following day, Ms Dye obtained a medical certificate certifying her unfit for work from 20 February 2007 until 3 March 2007 because of “stress”. Ms Dye obviously used this time to prepare the documents which she sent on 28 February 2007 to the HR department with a copy to Mr Blomfield. The bundle of documents commenced with a formal request for an out of line review. The formal request contained an “issues statement”. The “issues statement” complained about Mr Selvarajah’s file notes and about his use of the issues referred to in those file notes to “put me on a Continuous Improvement Program if I don’t leave the business of my own accord”. The issues statement accused Mr Selvarajah of neglecting his own obligations. The solution proposed was summarised as follows:
I have listed a number of steps which HR, Arnie and I could take to resolve this matter, together with some supporting facts. In short, I feel the most appropriate way to resolve the above concerns would include a change of reporting line from Arnie Selvarajah to Michael Blomfield.
308 Thereafter, a number of detailed proposals were advanced for the way in which Ms Dye could interact with her “preferred manager”. The “preferred manager” was unmistakeably Mr Blomfield. The issues statement was replete with criticism of Mr Selvarajah and contained criticism also of Ms Bayada and Ms Bevan.
309 The HR department moved quickly to appoint Mr Terry Mason, a senior officer of the bank approaching retirement after long service with the bank, to conduct the out of line review. Mr Mason gave evidence in the proceedings. He impressed me as thorough, diligent and conscientious in his approach to the review which he conducted. The review commenced with a meeting with Ms Dye on Friday 2 March 2007. Mr Mason’s notes of that meeting record that Ms Dye told him that a satisfactory resolution to her would be a change of reporting lines. She complained of bullying, suggesting that Ms Bayada was hostile and aggressive to her. Mr Mason attempted, evidently, to explain to Ms Dye the nature of the continuous improvement process which had been activated by Mr Selvarajah. He recorded the following:
I asked [sic] her that given her current manager had assessed her performance as not meeting expectations and if that stood, there would be optional outcomes – one is to improve so that expectations are met; the other is that if performance remains assessed as not meeting expectations, termination could be a possible outcome. Vivienne responded that if that happened she would immediately see her lawyer.
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310 This is a further indication that Ms Dye seemed determined to resist and contest any suggestion that her behaviour in her work should change. Subject, of course, to the outcome of the review which Mr Mason was to undertake in the period which followed this seems to reveal a form of obstinate resistance to any idea that Ms Dye might need to consider any attempt at improvement. She had evidently decided that the cause of all her difficulties lay elsewhere. Regrettably for this position on her part, that was not the conclusion to which Mr Mason came. On 5 March 2007, he interviewed Mr Selvarajah and Mr Carroll. On 7 March 2007, Mr Mason interviewed Ms Bevan. Mr Mason recorded Ms Bevan’s observations that she initially raised concerns with both Mr Blomfield and Mr Selvarajah about Ms Dye’s appointment to LBB because she had worked with her elsewhere and found that Ms Dye tried to take control of matters by allocating tasks to others without delivering fully herself. Ms Bevan told Mr Mason that often Ms Dye’s emails and statements in discussions were condescending. On 8 March 2007, Mr Mason interviewed Ms Bayada and also Mr Tanner. Mr Tanner described Ms Dye as bright, enthusiastic “with a need to control” and said he was aware of discussions between others about her behaviour being disruptive. He described Ms Dye as “can be high maintenance”. On 15 March 2007, Mr Mason interviewed Ms James who was highly complimentary of the LBB management team. She described Mr Selvarajah’s management approach as “direct, fair and clear on expectations”. She made an observation that Ms Dye “has an aggressive if not unacceptable tone when dealing with people”.
311 As recorded by him in his notes, and according to his evidence in the proceedings, Mr Mason received no support for the suggestions made by Ms Dye of dysfunctional management in LBB or poor management by Mr Selvarajah in particular. He did, however, receive information from those he interviewed which would serve to confirm that Ms Dye was not always easy to deal with and had a tendency to approach her work in a way which was not altogether harmonious with the ideas of others.
312 Meanwhile, Ms Dye on 7 March 2007 had a meeting with Mr Selvarajah concerning the work which he wished her to carry out and shortly thereafter she had a meeting with Mr Blomfield. Mr Selvarajah gave Ms Dye a list of six specific projects to complete with completion dates between 9 and 16 March 2007. There was a note of other work which she was currently doing and finally a short list of other projects which were to be put on hold until further notice. Mr Selvarajah asked her to review the list and to give him her response
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to it. Later that day, Mr Selvarajah sent Ms Dye an email with some amendments and asked her to confirm that the first six tasks could be completed on the basis she was not required to work outside of normal work hours. He asked for any suggested changes by the end of the week. The initial meeting with Mr Selvarajah was at 8 am. Surprisingly, in a meeting at 9 am Ms Dye presented to Mr Blomfield a supposed list of projects which she claimed to be “managing” for Mr Selvarajah, Mr Tanner and Ms James. Mr Blomfield’s response was to say to Ms Dye that no single human being could run all those projects. He indicated to her that he thought she was overstating the position. In fact it is clear that the claim involved substantial falsehoods. In any event, what Ms Dye was required to do had, a very short time before, been put beyond argument by Mr Selvarajah in writing. On the evening of Friday 9 March 2007, Ms Dye sent Mr Selvarajah’s list back to him with substantial changes. The changes were not acceptable to Mr Selvarajah who immediately sought advice from HR as to whether he could ask her to adhere to the tasks he had assigned to her.
313 Part of the arrangements Mr Selvarajah advised Ms Dye about was that he would meet with her weekly to review progress on the projects she had been allocated. A meeting was appointed for 15 March 2007. Ms Dye postponed it. The meeting was rearranged for 16 March 2007. On 16 March 2007, Mr Selvarajah sent an email to Mr Furlong in HR, for his information, to the effect that he had scheduled a work in progress meeting with Ms Dye that day at 3 pm, that she had failed to attend, that he had tried to call her on her mobile phone and it went to voicemail, and that people had told him that she had not come into work that day at all. In fact Ms Dye did not come to work in LBB again. On 22 March 2007, she obtained a medical certificate that she was unfit for work from 15 March 2007 until 23 March 2007 as result of stress. The following day, she was given a medical certificate stating her unfitness for work from 23 March 2007 until 25 May 2007. I shall trace the subsequent history of her medical attention and the medical certificates it generated separately.
314 On 30 March 2007, Mr Mason met with Ms Dye (who came to the office for this purpose) and provided her with a copy of his report and recommendations to read. She was not given a copy to keep at that stage. Although Mr Mason came to the view that Mr Selvarajah could have provided more specificity for Ms Dye in the work she was to do, his conclusions were overall unfavourable to Ms Dye and involved rejection of her complaints. Those conclusions included the following:
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3. Vivienne Dye has a view of the job she would like to have which does not match the existing role. While a PD [position description] does not exist there has been and is sufficient definition of the role. This needs to be reinforced. 4. Vivienne Dye’s direct & broad method of communicating (via email) can create tension in the workplace. 5. Overall there is a very positive culture in LLB [sic] and not one of discrimination, favouritism or factionalism.
315 Mr Mason’s evidence was that Ms Dye was very unhappy and upset at the outcome of his review and immediately commenced to argue with him about it. Mr Mason declined to enter into any form of negotiation. By this time, his views had been conveyed to the overall head of the business unit (Mr Grimshaw) and had been accepted. Mr Mason met again with Ms Dye briefly on 2 April 2007. Ms Dye again attempted to contest his conclusions.
316 Three important points should be made at this stage. First, there is no reason to conclude, for the purpose of the present proceedings, that any error of process or substance was committed by Mr Selvarajah, Mr Blomfield, Mr Mason or anybody in HR concerning the difficulties identified with Ms Dye’s work performance, the ways in which they were considered or the conclusions which were reached. Much less is there any reason to conclude that any form of legal relief arises from such matters. Secondly, it is undeniably clear that Ms Dye’s work performance had been found to be unsatisfactory by Mr Selvarajah, that Mr Blomfield concurred in Mr Selvarajah’s assessment and that Mr Mason took no different view. Mr Selvarajah had explicitly told Ms Dye in their meeting on 1 February 2007 that he would record, for the six month period to that point, that she did not meet expectations. Thirdly, to this point in time no suggestion had been made by Ms Dye of any form of sexual harassment by Mr Blomfield. Nor had any suggestion been made of any form of sexual harassment by Mr Patterson except Ms Dye’s written response to Mr Blomfield’s enquiry of her on 26 June 2006 and her subsequent statement to him concerning sex toys, neither of which were, I am satisfied, pursued with Mr Carroll or at all. For practical purposes those statements may be treated as having not been made. I reject any suggestion that Ms Dye made any complaint to Mr Mason either, amounting to a complaint of sexual harassment by Mr Blomfield. Mr Mason denied it and I am satisfied that it did not happen.
Sick Leave and Workers Compensation
317 On 3 April 2007, an email was sent to Ms Dye from the email address “gis jb”. There was no text in the body of the email. The subject line was “MB”. On 8 April 2007 (Easter
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Sunday), an anonymous email was sent from the same email address to Ms Chapman also entitled “MB”. It suggested that Mr Blomfield had treated Ms Dye unfairly and that it was not the first time he had done such a thing. There is no adequate proof that the email was sent by Ms Dye or with her knowledge or cooperation although that is a possibility which was left open in an investigation commissioned by Ms Chapman into its origins. Mr Blomfield was subsequently interviewed by Ms Chapman about this email. He expressed concern about Ms Dye’s conduct, to which I will refer again later.
318 On Monday 9 April 2007 (Easter Monday), Ms Dye sent Mr Blomfield a text message. It asked him if he would like to meet her for a drink that week “to talk this through”. She told him she really needed his attention and asked: “Please will you give me that?” She suggested 6 pm on Wednesday evening. She concluded: “I hope you still consider me a friend and that you and your family are having a nice Easter … (and I hope you remembered to go to mass) Please trust me too? I need your help. V”. Mr Blomfield did not reply.
319 On Friday 13 April 2007, Ms Dye rang Mr Blomfield in the early evening. Her mother was with her at the time. Aspects of this conversation were recorded in a notebook kept by Ms Dye. It appears as though Ms Dye first jotted some notes to assist her in her discussion with Mr Blomfield. Then her mother recorded aspects of their telephone conversation. Ms Dye and her mother then made some corrections from their joint recollection. I will regard the record as substantially accurate for present purposes. Ms Dye’s opening question was whether Mr Blomfield was “getting rid of” the file notes that had been made by Mr Selvarajah. He said he was not. Mr Blomfield indicated that it was not consistent with the FTR (fair treatment review) process for her to approach him informally or for off the record conversations. Mr Blomfield was about to go overseas for two weeks on business. Mr Selvarajah was going with him. He suggested to Ms Dye that when they returned Ms Dye should contact Mr Selvarajah and organise some time to meet him to arrange for her return to work. He confirmed that any contact with himself should be only as her manager once removed because she reported to Mr Selvarajah. Ms Dye then turned her attention to the text message sent to Mr Blomfield on 7 December 2006. She pressed Mr Blomfield as to whether the message was shown to Mr Selvarajah “as a friend of yours or as my manager”. Mr Blomfield appears not to have understood the distinction. The distinction seems meaningless in the present context.
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320 Shortly after this conversation Ms Dye telephoned Mr Patterson. She arranged with Mr Patterson to go to his house. Her purpose, she said in evidence in due course, was to get advice on what to do concerning Mr Blomfield. Ms Dye and her mother arranged in advance between themselves that Mrs Dye would leave after a short time, leaving Ms Dye alone with Mr Patterson to speak freely. Ms Dye eventually gave evidence in the proceedings (although not initially in her evidence in chief) that after her mother left Mr Patterson’s house, Mr Patterson again assaulted her. The first time such an allegation was made was in February 2009. The circumstances in which it was omitted from Ms Dye’s evidence in chief, and then added later, require attention in due course. For the moment it suffices to say that I do not accept that any such assault occurred. I am satisfied that Ms Dye went to get Mr Patterson’s advice as a friend on how to manage her work related circumstances in which an expression of dissatisfaction with her performance was to remain on the record.
321 The following morning, Ms Dye rang Mr Patterson and spoke to him for almost 10 minutes. At some time during the day Ms Dye attempted to gain entry to the building where she worked and discovered that her security pass had been disabled. Mr Furlong from HR explained in his evidence that an instruction to this effect was given by him on about 12 April 2007 because he regarded it as inconsistent with Ms Dye’s identified condition of stress to be troubling herself with work matters until she was fully fit to return.
322 On 18 April 2007, Mr Furlong called Ms Dye to ascertain her position. He made a detailed file note of the conversation. During this conversation Ms Dye informed Mr Furlong that her doctors had suggested she should apply for workers compensation to cover her medical expenses. Mr Furlong undertook to send her the necessary forms. He advised her that so far as her fair treatment review was concerned she had the option of either accepting the findings or having the matter reviewed further “in line”.
323 On 27 April 2007, Ms Dye emailed Mr Furlong and asked for a meeting with him at a “neutral place”. A meeting was in due course arranged for Friday 4 May 2007 at 11 am. On Friday 4 May 2007, before the meeting was held, Ms Dye lodged a workers compensation claim seeking compensation for lost work time and medical and out of pocket expenses. She identified her injury as “acute depression and anxiety caused by stress” and nominated that the injury occurred on 1 February 2007 when she was having a meeting with Mr Selvarajah.
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324 Mr Furlong met with Ms Dye at 11 am at a café on 4 May 2007. Another person accompanied Mr Furlong as note taker and notes were taken of the meeting. Ms Dye accused Mr Selvarajah of fabricating his file notes. She ventured a summary of the result of the FTR review which suggested that it was adverse to Mr Selvarajah. Mr Furlong did not agree with her. He took the view that her statements about the outcome of the FTR process were inaccurate.
325 In this conversation between Ms Dye and Mr Furlong on 4 May 2007, Ms Dye said that before she went to work in LBB she had been lobbying Mr Blomfield for a job and that their relationship had gone into “a personal space”. Mr Blomfield, she said, started inviting her out for drinks and making overtures towards her. Mr Blomfield asked her “if he left his wife would she marry him”. Ms Dye told Mr Furlong that she had been offered a job at Macquarie Bank “but turned this down”. She said she had been able to have “an adult conversation” with Mr Blomfield and that they had sorted the issues out like adults.
326 Some of these suggestions are fantasy, some are simply false. There is no substance in the suggestion that Mr Blomfield ever asked Ms Dye to marry him or suggested it as a possibility. Ms Dye made no such suggestion in the present proceedings. The suggestion that Ms Dye had been offered a job at Macquarie Bank but turned it down is simply false. She kept her application alive after she commenced at LBB and was eventually unsuccessful. Contrary to her “spin” on things, it is clear on the evidence in the present proceedings that it was Mr Blomfield who on 8 August 2006 indicated to Ms Dye that there was no possibility of a relationship between them. When Ms Dye commenced at LBB she did so with no special right of access to Mr Blomfield. It is clear from events subsequent to 6 November 2006, and from Ms Dye’s behaviour, that it was the lack of attention given to her by Mr Blomfield which generated some of the problems which ensued. Others arose from Ms Dye’s personal style and her inability to communicate effectively and cooperatively in the LBB environment. Ms Dye asserted to Mr Furlong that Mr Selvarajah’s December file notes referred to events which did not happen. She asserted that she started talking to Mr Selvarajah about her performance on 1 February 2007 and that no discussion had been held before that. This was another clearly false statement.
327 After her meeting with Mr Furlong on 4 May 2007, which concluded at about 11.45 am, Ms Dye at some stage in the early afternoon rang or text messaged Mr Patterson.
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She invited him to come to her apartment and to bring a bottle of wine with him. During Mr Patterson’s cross examination by counsel for Ms Dye, a challenge to him concerning his own general conduct resulted in a statement by him that on this occasion Ms Dye proposed that he engage in anal sex with her. Mr Patterson’s statement was supported by written notes made sometime after this occasion and after some other conversations with Ms Dye. It was on this same occasion that Ms Dye shared with Mr Patterson information about her visit to a live sex show. I accept Mr Patterson’s evidence that this sexual proposition was made to him, and declined. The significance of this encounter for the present proceedings will appear more clearly when I later discuss the allegation that Mr Patterson assaulted Ms Dye for a fourth time on 13 April 2007, less than three weeks earlier. For present purposes, however, this pleasant Friday afternoon spent in each other’s company in the isolation of Ms Dye’s apartment, sharing a bottle of wine, is another example of the friendly relationship which Ms Dye and Mr Patterson shared at this time, when she turned freely to him for advice and he just as freely gave her support.
328 Four days later, on 8 May 2007, in a telephone conversation with Mr Furlong, Ms Dye suggested that Mr Blomfield was orchestrating her removal from LBB because of a personal relationship which they had before she joined LBB. She would not accept that the steps taken by Mr Selvarajah, and the FTR review itself, were concerned with her behaviour or that there was any reason for concern about her behaviour.
329 On the same day, Ms Dye had a telephone conversation with Ms Marilyn Adams who was handling the workers compensation claim on behalf of the bank. She told Ms Adams that Mr Blomfield “had made sexual advances to her and when she rejected them things turned sour” (reminiscent of her suggestions about Mr Patterson in June 2006). She suggested that Mr Selvarajah was implicated in trying to keep Mr Blomfield out of matters so “the sexual harassment incident would be forgotten”. Ms Adams ascertained that no allegation of sexual harassment by Mr Blomfield had been made to Mr Mason in his review. Ms Adams contacted Mr Furlong and with his agreement arranged for a telephone conversation between Ms Dye and Mr Furlong. It was this conversation to which I referred a moment ago. The following day Ms Dye rang Ms Adams again and mentioned the occasion when she fainted. She said this was caused by previous sexual harassment by Mr Patterson. That is not the suggestion which was made in the present proceedings. It was obviously false at the time that the allegation was made to Ms Adams. Ms Dye’s fainting episode occurred
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on 15 March 2006. That predates any suggestion ever made concerning sexual misconduct or any form of sexual harassment by Mr Patterson. In the present proceedings, Ms Dye blamed Ms Bradbury for having fainted. I have already discussed the objective evidence which suggests that the cause lies elsewhere. This seems to me to be an example of Ms Dye’s preparedness to make false allegations without restraint if she believes it suits her purposes to do so.
330 The allegation made to Ms Adams on 8 May 2007 of unspecified sexual advances by Mr Blomfield appears to be the first documented instance of Ms Dye explicitly alleging that Mr Blomfield might have made an inappropriate sexual advance towards her that might be characterised as sexual harassment. It is not insignificant that her focus turned in this direction only after Mr Blomfield had refused to intercede on her behalf to expunge Mr Selvarajah’s file notes.
331 On 10 May 2007, Ms Adams informed LBB staff that Huxley Hill had been instructed to carry out a factual investigation into the matters raised by Ms Dye in her workers compensation claim. In her evidence in the present proceedings, Ms Dye categorically denied that she was interviewed by any representatives of Huxley Hill. In fact she was interviewed on three occasions – 21 May 2007 (for over three hours), 24 May 2007 and 1 June 2007. However Ms Dye would not permit Huxley Hill to take a statement from her to which she would subscribe. She insisted on providing them with a very lengthy document drafted by her. I refused to admit it into evidence in the present proceedings because it did not pass any of the tests for admission as a prior representation. Some extracts were admitted independently upon other foundations. Huxley Hill did interview Mr Blomfield but did not tell him of the allegations which Ms Dye had made against him. Those allegations were treated as confidential and Mr Blomfield had no opportunity to respond directly to them. He was simply asked for his version of particular events. Huxley Hill also interviewed Mr Selvarajah on 29 May 2007. In its report dated 14 June 2007, Huxley Hill recorded the following matters:
The Claimant is alleging she is suffering from acute depression and anxiety disorder, as diagnosed by her medical practitioner, she further alleges this is due to the situation that exists in her current workplace. The Claimant is alleging over the past year Michael Blomfield, Executive General Manager, Local Business Banking, has subjected her to sexual harassment, victimisation, workplace bullying and discrimination.
She further alleges on 1 February 2007 Michael Blomfield attempted to induce her to leave
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the Bank of her own accord, using derisive and thuggish techniques.
As a result of her alleged anxiety the Claimant has been absent from work for some months and believes she has suffered this treatment on account of rejecting Mr Blomfield’s sexual advances and her subsequent defiant objection to his behaviour.
Further and more detailed allegations are outlined in the Claimant’s lengthy statement in which she has appeared to note even the most minor of details.
332 It will be apparent from the matters I have already recorded that Ms Dye’s suggestion that concerns expressed about her work had their origins, directly or indirectly, in any misconduct towards her by Mr Blomfield lack any support in the evidence in the present proceedings. Huxley Hill’s succinct assessment of Ms Dye’s claim was that they could “see no possible potential for recovery [i.e. by Ms Dye] in this matter”. In accordance with Huxley Hill’s views, on 23 July 2007 Ms Dye was advised by CBA that her workers compensation claim had been rejected. The letter to her said:
In your statement you alleged that you were harassed and subjected to unwarranted criticisms in the workplace because you rejected advances by Mr. Blomfield to pursue a personal relationship with him. Mr. Bloomfield [sic] denies that he attempted to pursue a personal relationship with you. We say that your perception that Mr. Blomfield pursued a personal relationship with you has no basis in reality, and consequently, if your injury was caused by the misperception, then you have not sustained an “injury” as defined in Section 4 of the 1987 Act.
You assert that you were placed on performance improvement because you refused advances by Mr. Blomfield to pursue a personal relationship. We say that in reality you were placed on performance improvement because your supervisor, Mr. Selvarajah, had valid criticisms to make of your performance. This was confirmed by the Fair Treatment Review process. If you perceived that there was another reason for being placed on a performance improvement program, then that perception had no basis in reality, and consequently, if your injury was caused by the misperception, then you have not sustained an “injury” as defined in Section 4 of the 1987 Act.
333 Some time later, after her position had been declared redundant on 9 November 2007, solicitors acting on Ms Dye’s behalf made representations to the Fraud Investigation Branch of WorkCover, on her instructions, suggesting that the decision to decline Ms Dye’s workers compensation claim was based on false and misleading statements. A copy of the representations was sent to the Minister for Industrial Relations and the Chief Executive Officer of WorkCover, also on Ms Dye’s instructions.
334 A letter rejecting the allegation of fraud, or the provision of false or misleading information, was sent by WorkCover to Ms Dye’s solicitors on 6 December 2007. On 10 December 2007, after Ms Dye’s employment had come to an end, a copy of the letter sent to
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the WorkCover Fraud Investigation Branch dated 19 November 2007 was sent directly to Ms Adams. Ms Dye’s solicitors purported to administer a series of aggressive enquiries to Ms Adams. They suggested that if satisfactory answers were not forthcoming they would provide copies of the correspondence and other relevant material to WorkCover, the responsible Minister and his “counterpart in opposition”. The letter concluded:
Given the lack of any adequate explanation and the lack [of] any transparency or fair and impartial investigation into our client’s claim, she reserves her right to raise these matters in print media and on radio and television at any time she chooses.
335 The significance of this threat will be seen in a better context when I discuss the way in which Ms Dye ultimately chose to attract public attention to her complaints.
2006/2007 Performance Review
336 As at 5 March 2007, Mr Selvarajah had not done a performance review or a performance plan as there had been no practical need for a specific position description for Ms Dye before this time. In his evidence, Mr Selvarajah said that he met with Ms Dye on 31 October 2006 and explained to her that the business analyst role which he had in mind was evolving in his mind and was project based. She seemed excited about the fact that it had this character. Ms Dye said to him that she worked better without a position description. Mr Selvarajah’s evidence concerning Ms Dye’s work in the first couple of months, and the fact that she was assigned to do work on occasion for other people, confirmed the arrangement. However, Mr Mason, during the FTR process, suggested to Mr Selvarajah that it would be better for somebody like Ms Dye to have greater specificity about the work which she was to do. Mr Mason’s final report later confirmed that was his own view in the case of someone like Ms Dye who might be regarded as someone “who operates with an element of individualism”. Mr Selvarajah met with Mr Mason on 5 March 2007. After the meeting, Mr Selvarajah decided to remedy the lack of specificity. On 7 March 2007, he met with Ms Dye. He gave her a completed performance management plan and a list of specified tasks. When Ms Dye responded to his list of projects on 9 March 2007, Mr Selvarajah came to the view that she did not want to do what he had asked but just to keep doing what she wanted, which was to attend meetings and be seen to attend them. As I have already mentioned, Ms Dye went on sick leave a short time later.
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337 At the end of June 2007, Mr Selvarajah completed a performance review for Ms Dye at the same time as he did for all his other staff, even though Ms Dye was not at that time at work. The reviews for other staff were printed so he could discuss them with the staff. Ms Dye’s was not printed at that time but was only completed electronically. Mr Selvarajah gave Ms Dye an overall performance rating of “needs improvement”. On this assessment Ms Dye would not get a bonus. She did not meet expectations. I am satisfied that the assessment was a genuine and conscientious assessment by Mr Selvarajah. It reflected his conclusion that Ms Dye had underperformed in a number of important areas. I reject the suggestion which was made in Ms Dye’s case that Mr Selvarajah’s assessment of Ms Dye’s performance was either done to give effect to Mr Blomfield’s desire to be rid of Ms Dye or involved some retrospective justification for Mr Selvarajah’s own conduct. Ms Dye’s performance was not regarded as satisfactory. She was told that at the time. I am satisfied that a contemporaneous record was made to the same effect.
338 However, Mr Selvarajah was not Ms Dye’s manager for the whole of the financial year. Before she started in LBB on 6 November 2006 Ms Dye had reported to both Mr Patterson and Ms Bayer-Rosmarin. Under the bank’s procedures, which applied also to employees of CommSec, some assessment was required for the period from 1 July 2006 to 5 November 2006. During Ms Dye’s initial period of absence on sick leave, little attention appears to have been given to regularising the position.
339 On 21 September 2007, Mr Scott Alomes from the HR department sought clarification from Mr Patterson about Ms Dye’s performance assessment (so far as it concerned him) for 2006/2007. Mr Patterson explained in his reply that Ms Dye worked for him from 1 July 2006 through to about October 2006 (he thought) – in fact it was until September 2006. At the end of this period Mr Patterson’s reporting lines changed. Ms Dye was then working on a particular project. He agreed with Ms Bayer-Rosmarin that it would be appropriate for her to take Ms Dye on to complete that work. Given that she was doing the same work during that period as she had in the period when he rated her “exceeds expectations” he said: “I saw no reason to change the rating for her for the period concerned and communicated this to HR”. Ms Bayer-Rosmarin supervised Ms Dye for a period which was too short to warrant a separate assessment. The assessment which was required to complete the financial year to 30 June 2007 was that done by Mr Selvarajah who, as earlier
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indicated, had put his assessment into the bank’s electronic system but not printed it or discussed it with Ms Dye.
340 In due course, the two assessments (exceeds expectations/needs improvement) and their respective evaluations of particular aspects were amalgamated by HR to produce an overall assessment of “meets expectations”, entitling Ms Dye to a bonus, which was later paid to her. Neither Mr Selvarajah nor Mr Blomfield agreed with this outcome which did not, in their view, match the actual contribution which Ms Dye had made to LBB.
341 Further discussion of the mechanics associated with this aspect of Ms Dye’s employment may be deferred for the moment.
Suggested demotion
Mr Morrison’s engagement
342 Ms Dye asserted that after she went on sick leave her role was taken over by Mr Andrew Morrison, who was a level 3 executive manager. Her argument was that Mr Selvarajah’s directions to her on 7 March 2007, about the work she was to do, represented a demotion and a substantial change to her real role. She also asserted, based on this premise, that her position never became redundant. Rather, it remained in existence with Mr Morrison performing her role. None of those assertions or assumptions accords with the real position,
343 Independently of Mr Selvarajah’s need for a business analyst in a level 2 role, which Ms Dye filled from 6 November 2006, Mr Blomfield decided in October 2006 that he needed extra assistance himself. He asked his direct reports if they could suggest anyone suitable. Ms James suggested Mr Morrison. On 26 October 2006, an appointment was arranged between Mr Blomfield, Ms James and Mr Morrison for 8 November 2006, only two days after Ms Dye commenced in LBB. There were further meetings between Mr Blomfield and Mr Morrison on 20 November 2006 and 1 December 2006, the last meeting being attended also by Mr Selvarajah. On 1 December 2006, Mr Blomfield sent an email to Mr Furlong in HR asking him to offer Mr Morrison a level 3 position. Mr Morrison accepted an offer to commence on 5 February 2007, and did so. In the meantime, Ms Dye’s work performance had been the subject of discussions between her and Mr Selvarajah on 8 and 12 December 2006 and 1 February 2007. Those discussions were unconnected with the engagement of Mr
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Morrison, or the work he was engaged to perform. He did not replace Ms Dye. His qualifications and experience were very different.
Ms Dye’s duties
344 When Mr Blomfield became the head of LBB, he determined upon an altered business model. Part of the change, which Mr Blomfield and others decided to introduce, involved the way in which contact might be made by individual businesses with a banking representative. People or businesses above a certain banking business size (in its worth to the bank) were to be put in contact, if they telephoned, with an individual banker. Complex arrangements were made for the telephone call to default to another banker in the absence of the assigned representative. Businesses or people whose banking business was below the determined value (to the bank) would have their enquiries handled by a call centre. These arrangements (which it is not necessary for me to attempt to describe in further detail) involved at least two major projects. One was called “resegmentation” and involved the reallocation of individual businesses by loan size and postcode to individual bankers or to the call centre facility. The other project involved the establishment of the call centre itself. Teams of people were engaged on each aspect.
345 Ms James was engaged to head the call centre project. Ms Dye was not generally involved with that aspect of restructuring apart from doing one job for Ms James (which did not get completed before Ms Dye was taken off it) and the other which I mentioned earlier which was done to Ms James’ satisfaction.
346 Mr Selvarajah explained that Ms Dye’s task concerning resegmentation was to create a spreadsheet and sort by two variables. The task involved splitting a list of clients into smaller lists for ultimate allocation. So far as it concerned the Mid-East region, Ms Dye did not ultimately complete this task which was finally done by Mr Selvarajah’s executive managers for each of their own areas and by himself also.
347 In relation to neither the call centre or resegmentation, or any of her normal work, was Ms Dye involved in project management whether nationally or otherwise. A further task upon which Ms Dye was involved arose from Mr Selvarajah’s request to her to be the LBB representative on the BBGS working group. This working group involved the attendance (often by telephone) at a meeting on a Wednesday every two weeks. Initially, the business
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representative for LBB was Mr Selvarajah, at Mr Blomfield’s request. He attended about six meetings. He initially expected that the meetings would bring forward suggestions for improvement or prioritisation but discovered that he was just taking information backwards and forwards. He felt that this was not a good use of his time and after Ms Dye’s appointment asked her to attend in his place. He expected Ms Dye to let him know what was being discussed at the meetings. She had no decision making authority. She was a conduit for the passage of information. Ms Dye’s first contact with the BBGS working group appears to have resulted from accidental participation on her part on 6 December 2006 but shortly thereafter the position was regularised in about mid December 2006. Ms Dye’s attendance at these meetings did not last very long. In late February 2007, Mr Munchenberg rang Mr Selvarajah to say that Ms Dye had not been attending them and Mr Selvarajah then asked Mr Morrison to attend.
348 Many of the particular tasks upon which Ms Dye was initially engaged had come to an end, or were coming to an end, in accordance with the timetable set by Mr Blomfield to rebuild the business by 5 February 2007. Other work she had been doing, or should have done, was absorbed by other people including Mr Selvarajah. The plain fact is that when Ms Dye went on extended sick leave the business managed quite well without her.
349 On Sunday 1 July 2007, Ms Dye sent to Ms Adams an email attaching a spreadsheet which purported to set out her duties prior to 1 February 2007 “as agreed to and defined by my manager and MOR”. She asserted that her “line managers” had since drafted a performance plan which was different and which significantly reduced the scope and responsibility of her role by way of demotion. Both Mr Blomfield and Mr Selvarajah were asked about this document in their evidence. Mr Blomfield said that the projects to which Ms Dye referred in the document involved more than 1,000 people for more than a year at a cost of over $300 million. He saw a correlation between this list and a suggestion made to him in her meeting with him on 7 March 2007 when she brought a different document purporting to list her work. At that time he said to her that nobody could manage all those things. Mr Selvarajah in his evidence systematically disagreed with the assertion that the spreadsheet sent to Ms Adams was a list of Ms Dye’s duties. In this, as in other respects, I am satisfied that Ms Dye seriously exaggerated her real responsibilities. It was a key component of her case to suggest that she had a pivotal national role in the rebuilding of the LBB business. There is no support for that in the evidence of other witnesses or in any document other than
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her own. I reject the suggestion. There is a consistent picture which emerges from the evidence. When Ms Dye applied herself to the work which she was required to do it was generally of a good character. However, she was prone to give priority to work which she thought would win her the attention of others and to ignore or not apply herself to work which was of a more mundane character. She had a tendency to seek to take control of matters which interested her. She frequently alienated those whose cooperation was required by her approach and by her attempts to dictate to them what should be done. In LBB, at least, Ms Dye found significant resistance to this aspect of her personal style. Her superiors (Mr Selvarajah and Mr Blomfield in particular) came to regard it as counter-productive for the business. Mr Selvarajah was within his rights to give specific directions to Ms Dye on 7 March 2007 about the matters which he wished to receive her attention. He was prepared to consider her views about the dates by which those tasks should be completed but not the tasks themselves. Ms Dye’s response to him reorganised his list of priorities and altered the dates for completion. Again she misunderstood her position. In the end she did not complete any of the tasks he had assigned to her.
350 There was no question of demotion involved in the specific instructions given to Ms Dye about the work that she would perform. There was no change to the salary she was being paid as Mr Selvarajah’s business analyst, or to her other conditions or entitlements. Her responsibility was to carry out the work that was assigned to her. She had no independent discretion to determine her own duties, much less to select the person to whom she would report.
351 Neither was Ms Dye’s work at any stage taken over by Mr Morrison. On Mr Selvarajah’s evidence, the only function being performed by Ms Dye which was assigned to Mr Morrison, after he commenced on 5 February 2007, was to attend the meetings of the BBGS working group. By this time, Ms Dye was failing to perform even these responsibilities through her neglect of them. Otherwise the work which had been assigned to Ms Dye, which was not completed by her, was carried out in due course by Mr Selvarajah himself and by his executive managers. He did not again have the assistance of a business analyst. Nobody performed that role. That position was in every practical sense surplus to the needs of the business well before a formal declaration to that effect was made on 9 November 2007.
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Exclusion from work events
352 One of the complaints made by Ms Dye in the present proceedings was that she was unfairly and unreasonably excluded from work events or work related events. Those contentions were sought to be elevated to propositions amounting to a breach of contract. Most of the complaints were without any substance and some were simply silly. I do not propose to discuss them in detail. Ms Dye had no contractual entitlement to invitations to particular work events. The work which she was required to do was a matter within the discretion and supervision of those to whom she reported. Ms Dye’s complaints in this area, as in many other areas, appear to be borne from her sense of frustration that she was not, as she desired, the centre of attention or the recipient of greater attention or recognition. I am satisfied that her wishes in this regard were misplaced and bore no sensible relationship to her actual responsibilities. Ms Dye saw herself as a rising star destined for great things. Others did not.
Review of staff requirements in Local Business Banking
353 On 27 June 2007, the head of PBS, Mr Grimshaw, sent Mr Blomfield a memo advising him that PBS needed to find a net $100 million savings for the forthcoming financial year (2007/8). The memo said, in part:
This target may require you to reduce your forecast staff numbers, either through avoiding hiring additional staff that had been included in your budget submissions or through outright reductions. The savings that must be achieved should be net of any implementation costs (including redundancy costs); there is no central redundancy provision.
In LBB the specific target is a 3.3% reduction (equating to $7.3m net expense reduction). You may need to consider if attrition will allow you to reach the target or if staff reduction will be required.
354 Two days later Mr Blomfield brought the position to the attention of all staff in LBB. He announced a series of austerity measures. In his evidence, he said that some of these matters were symbolic but they were the sort of initiatives which would serve as reminders of the need to find cost savings. At the same time, Mr Blomfield needed to increase the number of face to face banker positions in branches. By mid September 2007, it had been identified that LBB Mid-East would need to find seven extra positions to transfer to face to face ones dealing directly with clients, out of total additional positions of 27 to be found in LBB as a whole. In a context where other positions had to be cut to achieve that outcome, Ms Dye’s
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business analyst position was a natural choice. It was not necessary and could readily be declared redundant. That step would not terminate Ms Dye’s employment or necessitate that it would be terminated. The assessment concerned positions, not people.
355 One week later, one of Mr Selvarajah’s executive managers, who had been assigned the task of identifying positions which could be made available, provided him with an analysis which included Ms Dye’s business analyst position as one which could be converted to a face to face role. Mr Selvarajah gave evidence that Ms Dye was not fitted by her experience to perform such a role. Mr Selvarajah and Mr Blomfield decided that Ms Dye’s position was one where savings could be made. They decided it should be abolished and removed from LBB’s budget. Those decisions were communicated within the reporting structure in the bank concerned with operational matters, including some parts of the HR department. They appear not to have been brought to the attention of those managing Ms Dye’s absence and sick leave from a HR perspective, something about which Mr Blomfield later expressed his criticism.
356 At this time, Ms Dye was on leave without pay. Her workers compensation claim had been declined, her sick leave was exhausted and she had used all her available annual leave. On 16 October 2007, Mr Blomfield was advised that Ms Dye had provided a medical certificate certifying her fit for pre-injury duties. She was therefore entitled to be placed back on the payroll. Mr Blomfield advised HR in the following terms:
I understand, but the reality is this: 1. We have been living without this role for some six to nine months in Viv’s absence and the Mid East team seems to have coped just fine. 2. We were delivered large SAW cuts in the April budget and again in the FY07/08 budgets. 3. This year’s budget requires me to internally fund 27 new BBiB roles through a mixture of attrition and, where appropriate, redundancy.
This being the case, there is no longer the need or the financial capacity to fund this role. I intend to make this role redundant.
Could you proceed on this basis please.
357 To understand a little more about how the two matters (intention to return to work/decision to declare position redundant) could coalesce in this way only in mid October 2007, it is necessary to understand the way in which Ms Dye’s absence from work was supported by a series of medical certificates, and what they were intended to achieve.
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Managing the medical certificates
358 When Ms Dye saw Dr Grewal and Dr Horiuchi in September 2006 arising from her feelings of anxiety at that time, Dr Grewal referred her to Dr Parmegiani in early October 2006. She did not, however, see Dr Parmegiani at that time. She did not see Dr Parmegiani until 11 April 2007. I infer that the appointment to see Dr Parmegiani then was probably due to the discussions with Mr Selvarajah and Ms Dye’s distress at the outcome of Mr Mason’s review. That is confirmed by the stated basis for Ms Dye’s workers compensation claim, lodged soon after on 4 May 2007, which identified the date of “injury” as 1 February 2007. There was certainly nothing reflecting any accusation of sexual harassment in the present case which may be connected to any decision to involve Dr Parmegiani at that time. Dr Parmegiani saw Ms Dye in a series of consultations between 11 April and 28 May 2007. He provided her with a medical certificate for that period which came to Mr Furlong’s attention on about 12 April 2007. Dr Parmegiani’s report on 22 May 2007 declared Ms Dye to be sufficiently recovered to go back to work. However she did not return to work. She followed a different path altogether with the assistance of her general practitioner, Dr Grewal, who appears to have been a willing participant in a strategy devised essentially by Ms Dye herself. At one point, Dr Grewal said in his evidence that his certificates were based on what Dr Parmegiani had said, but he was forced to concede that he had never spoken directly with Dr Parmegiani and only had Dr Parmegiani’s letter of 22 May 2007 in which Dr Parmegiani said Ms Dye was then well. Dr Parmegiani denied any involvement in the strategy. Mr Richard Forby, a rehabilitation consultant whom Ms Dye consulted, also denied any hand in orchestrating the contents of medical certificates. Dr Grewal conceded in due course that the medical certificate strategy followed after May 2007 came from Ms Dye.
359 Despite the fact that Dr Parmegiani said on 22 May 2007 that Ms Dye was fit to return to work, Dr Grewal provided her with an unbroken series of medical certificates from 15 March 2007 to 3 September 2007 declaring her unfit for work. The last of these certificates was given on 20 August 2007. Until 17 August 2007, Ms Dye was entitled to sick leave on full pay in response to her medical certificates. Then she was required to commence taking annual leave if she wished to continue to receive salary. On 31 August 2007, Ms Dye advised the bank that she did wish to use her annual leave for that purpose. That provided her with an entitlement to salary until her annual leave also expired on 13 September 2007.
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360 In April 2007, Ms Dye joined the FSU. In communications with the FSU on 29 August 2007, Ms Dye suggested that the appropriate strategy included obtaining a medical clearance to return to work on condition that she was not to be under the direct or indirect influence of Mr Selvarajah or Mr Blomfield. She said that she anticipated that the bank would not accept that condition and “will instead issue me with an ultimatum to return to my previous working conditions or be terminated”. The strategy was then to lodge a formal complaint to HREOC to the effect that the bank had refused to take reasonable steps to ensure a safe working environment and a safe return to work owing to its failure to comply with the condition. Ms Dye anticipated that the bank would show its hand within two weeks. The strategy appears to me to have been quite misconceived but that is not now to the point.
361 On 31 August 2007, Ms Dye sent an email to Mr Forby saying that Slater & Gordon, solicitors, had advised that her doctor should alter her medical position from “unfit for work” to “fit for suitable duties”. The letter said:
This morning, I’ll call the Dr and ask for a Workers Comp medical certificate which reflects this change in medical fitness as of Monday, but which applies the following restrictions:
a. I am not to work under the DIRECT or INDIRECT influence of Arnie Selvarajah, Michael Blomfield, or any persons whose involvement has contributed to my current symptoms. b. In order to assist my safe return to work, the Bank to support me by providing access to Rehabilitation Services. …
362 This was not Mr Forby’s idea. Mr Forby first spoke with Ms Dye on 30 August 2007. In his evidence, he said that the idea did not come from him. Ms Dye told him she did not believe she would be put back to work. On 4 September 2007, Dr Grewal issued a certificate which conformed with Ms Dye’s suggested limitations. She was declared fit for “suitable duties” from 3 September to 3 October 2007 but was to have no contact with Mr Selvarajah and Mr Blomfield. The bank did not respond as Ms Dye had anticipated. The bank began looking for positions for Ms Dye which might meet her condition, but without success. In the meantime, Ms Dye’s pay came to an end as her annual leave expired. On 19 September 2007, Mr Alomes wrote to Ms Dye to say that she was now on leave without pay. On 21 September 2007, there was a meeting between Mr Alomes and Mr Forby to discuss Ms Dye’s situation. On 8 October 2007, Ms Dye sent an email to Mr Rochfort saying that if the bank did not provide a proper position by the end of that week she would “move straight to Fit for Pre Injury Duties”. This would reinstate Ms Dye’s entitlement to salary. Ms Dye said:
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The last medical certificate ran out on 3 October, so I’ll arrange for a new certificate covering me as Fit for Suitable Duties from 3 Oct to 12 Oct (inclusive) and a new certificate deeming me Fit for Pre-Injury as of 15 Oct.
363 True to this strategy, on 9 October 2007, Dr Grewal issued a certificate certifying Ms Dye fit for “pre-injury” duties. However, he “recommended” that there be no contact with Mr Blomfield or Mr Selvarajah. Dr Grewal added the recommendation (contrary to Ms Dye’s strategy) because he thought it would maintain consistency with the previous condition, but without appearing as a requirement. Two days later, Dr Grewal issued a further certificate to say that Ms Dye was fit for “suitable duties” from 4 October to 10 October 2007 and then fit for pre-injury duties with no restriction from 11 October 2007 onwards. This also reflected an instruction from Ms Dye.
364 It does not appear to me that any of these tactics, or any of the certificates, had anything to do with a medical condition being suffered by Ms Dye. The certificates appear to have been issued with a view to maintaining Ms Dye’s entitlement to salary for so long as that was available to her. Then the certificates were altered. Upon the alteration certifying her fit for pre-injury duties Ms Dye became entitled to return to work on full pay.
Payment of bonus
365 On 23 October 2007, Ms Dye (with a copy to Mr Patterson) enquired about her bonus payment for 2006/2007. Mr Alomes replied on 24 October 2007. He indicated that her annual 06/07 PF&R was a combination of the PF&R completed by Mr Patterson from 1 July 2006 to 5 November 2006 (which included the period with Ms Bayer-Rosmarin) and a PF&R completed by Mr Selvarajah for the period 6 November 2006 to 15 March 2007 when Ms Dye went on sick leave. The combined PF&R would provide a rating of “meets expectations”. However it was still required that Ms Dye discuss her latest PF&R with Mr Selvarajah. A meeting was arranged to discuss the PF&R on 31 October 2007 and Ms Dye was sent a copy of the PF&R. The meeting was postponed at Ms Dye’s request because her “support person” was not available. The meeting was rescheduled for Wednesday, 7 November 2007. The HR department had by this time decided to pay Ms Dye a bonus on the basis of a “meets expectations” rating. Ms Dye was advised of that on 2 November 2007. That meeting went ahead on 7 November 2007. It was contentious. Ms Dye did not agree with Mr Selvarajah’s assessment. Mr Selvarajah’s evidence was that Ms Dye wished to contest every element of his assessment. Her desire to do so hindered discussion to the point
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where eventually he was not able to deal with each part of his assessment. A representative of the HR department who was present at the meeting agreed to make some minor changes, to which Mr Selvarajah was disinclined to agree. However, HR had determined that Ms Dye would be paid a bonus payment resulting from the combined assessments. That payment was made.
Alleged breach of confidentiality and advice of redundancy
366 During the course of Ms Dye’s absence during most of 2007 the HR department kept Mr Selvarajah generally advised. For example, it informed him when Ms Dye’s leave entitlements expired. Otherwise, negotiations with Ms Dye and her representatives did not involve Mr Selvarajah or Mr Blomfield. They were handled by the HR department. Those negotiations included the exchange of information with Mr Forby (after his engagement by Ms Dye) concerning efforts being made to find alternative positions for her. Mr Forby gave no evidence to suggest those efforts were other than genuine and conscientious. There were also some discussions with the FSU. In around mid September 2007, when her entitlement to payment through taking annual leave was about to finally cease, Ms Dye’s attention it appears was on the possibility of a cash settlement, but she also hoped that another position might be found for her. In an email of 14 September 2007 to the FSU she mentioned that Mr Forby was to meet with Mr Alomes a week later (i.e. 21 September 2007) “to discuss an alternative, interim role”. Ms Dye thought, in the circumstances, it might be premature to ask for a “cash settlement”. Mr Daniel Terry in HR, on 17 September 2007, informed Mr Blomfield (with a copy to Mr Selvarajah and Mr Furlong) that “the Legal team are also in negotiation around a severance payment”.
367 On 22 October 2007, Ms Dye sent a letter to Mr Carroll. She sent a copy to Mr Patterson and Mr Alomes from HR. In the letter, Ms Dye complained of a breach of confidentiality by Mr Blomfield concerning her complaint in June 2006 about Mr Patterson. Ms Dye said in this letter:
Upon the resolution of this matter, I was advised by you to inform the Executive General Manager [Mr Blomfield] that under no circumstances was he to divulge to any party his knowledge of the incident, or any of its specifics. I was also advised by you that my former manager [Mr Patterson] should not be made aware of the Executive General Manager’s knowledge of the incident. On 30 June 2006, I met with the Executive General Manager to inform him of your advice and he committed his confidentiality. I assume that PBS Strategic Human Resources also confirmed his confidentiality.
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This confidentiality has been breached.
368 Ms Dye referred to Mr Blomfield producing a lengthy statement. That was a reference to the statement taken by Huxley Hill, which was signed by Mr Blomfield on 8 June 2007.
369 Ms Dye said:
The Executive General Manager has since produced a lengthy statement which portrays me as an under-performing, opportunistic employee who has exhibited inappropriate behaviours toward him.
370 Mr Carroll was, of course, well placed to know what conditions of confidentiality had been stipulated in June 2006. He made some additional enquiries about the allegation that some breach of confidentiality had occurred, and decided that the allegation was without any foundation. In the meantime, independently of the process of assessing and paying Ms Dye’s bonus, it was necessary to manage the fact that the business analyst position in LBB Mid-East was no longer required. As a result of Dr Grewal’s earlier certificate suggesting Ms Dye could return to work and carry out duties which did not involve contact with Mr Blomfield or Mr Selvarajah attempts had already been made to identify such a position (necessarily outside LBB) but without success. When Ms Dye was certified unconditionally able to return to work she became entitled to be placed again on full pay and was, but there was no question of her then returning to LBB. Redundancy of Ms Dye’s position would normally require CommSec to attempt to find an alternative position for her before a decision was made that her employment should come to an end with an extra payment for retrenchment, according to a predetermined formula based on length of service.
371 On 7 November 2009, Mr Carroll sent Ms Dye an email confirming a voice message proposing a meeting to discuss Ms Dye’s allegation of breach of confidentiality on 9 November 2007. He apparently mentioned that Mr Selvarajah would attend. Ms Dye replied pointing out that the breach of confidentiality referred to one person only. Mr Carroll caused a response to be sent on 8 November 2007 saying that Mr Selvarajah would not attend the meeting while the breach of confidentiality was discussed but be brought into the meeting at the conclusion of those discussions. Ms Dye responded protesting Mr Selvarajah’s proposed
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attendance. Mr Carroll sent a further message early on the morning of Friday 9 November 2007. His email read:
I have received your message sent yesterday afternoon.
A few comments for clarity – the meeting is being held to address alleged Breaches of Confidentiality and to hear any new information you want to put forward. Mr Selvarajah will not be attending that meeting. I did mention that a representative of our Workplace Advisory Group would be present – with the change in time I will now have Jenny Gow of HR with me. Immediately after our scheduled meeting Mr Selvarajah will be joining us to speak to you about your role with Local Business Banking. This has nothing to do with the meeting concerning performance issues – that is separate.
I will see you at midday.
372 During the meeting on 9 November 2007, Mr Carroll first informed Ms Dye that he had investigated her breach of confidentiality allegations against Mr Blomfield and had not found any breach to be established. Mr Selvarajah then joined the meeting and told Ms Dye that her role was redundant. He handed her a letter to that effect. The letter read:
This letter is to confirm our recent discussions regarding your employment within the Bank.
As you are aware, it has been necessary for us to review the staffing needs of Local Business Banking. This review has identified a number of roles in the current structure that are surplus to requirements. Unfortunately, your role in LBB is to be abolished effective from close of business today.
It is the Bank’s preference to redeploy you to a suitable position within the Bank and we would like to explore, in consultation with you, appropriate opportunities. We have already commenced that process and will review options in within the fortnight.
We are interested in your preferences and I will talk with you further shortly to obtain a better understanding of these.
If we are unable to identify a suitable position for you within the Bank and the decision is made to retrench you, you will be offered redundancy in accordance with your current employment contract. Should the decision be made to retrench you we will discuss this with you further at that time.
Should you have any questions in relation to the process please do not hesitate to talk to me or Mick Carroll, on (02) 8282 4007.
I look forward to talking with you soon.
373 Mr Furlong gave evidence that the procedure followed was in conformity with the bank’s policies and procedures concerning the management of redundancy. I queried the use of the statement in the first paragraph but Mr Furlong confirmed that this statement often
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referred to discussions which take place in the meeting itself. This may not appear to provide much notice but Mr Furlong explained that redundancy advice is frequently associated with distress and normally the timing of such a meeting, and advice to that effect, is arranged so that there will be an opportunity for people to leave work and have some time to consider their position and overcome initial shock. Frequently such meetings are arranged for a Friday, as this one was. It is not necessary to explore further the merits of this approach.
374 The discussions which were to follow a declaration of redundancy were ones about redeployment to another position as an alternative to loss of employment. The question of whether a position was to be made redundant within the bank’s structure was not a matter for specific discussion with individual occupants of positions. That was a matter to be judged, so far as the bank was concerned, having regard to the organisational requirements it had from time to time. The procedure which was followed in Ms Dye’s case exhibited no breach of any contractual obligation. It was evidently kept separate from the assessment of Ms Dye’s performance. I am satisfied that procedurally the two processes were in fact separate. The declaration of Ms Dye’s position as redundant was not connected with her underperformance in that position.
Termination of employment
375 The letter of 9 November 2007 to Ms Dye made it clear that her employment was not at an end. It may not have come to an end. So far as the HR department was concerned Ms Dye had a “meets expectations” assessment. She was not going to work in LBB, but efforts were being made to find a position for her. That, the letter said, was the bank’s preference.
376 Mr Forby’s evidence confirmed that the HR department was at this time trying to find a position for Ms Dye. A file note made by Mr Terry from HR dated 5 November 2007 shows that 11 people had been contacted to see if a role might be available for her. On 12 November 2007, Mr Forby reported to Ms Dye that Mr Alomes had told him that the redundancy “was a result of the business unit reducing its head count” and that HR were “continuing in attempts to locate you an alternate position”. He said that Mr Alomes “mentioned a number of business units including retail banking and wealth management had been approached to date”.
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377 On 13 November 2007, Mr Carroll wrote formally to Ms Dye advising her that he had found no breach of confidentiality by Mr Blomfield.
378 On 22 November 2007, the bank’s payroll system, in error, automatically processed Ms Dye’s “termination” of employment. She was sent a letter attaching a certificate of service from 7 March 2005 to 22 November 2007 with a total payout which included payment on account of retrenchment. On 23 November 2007, Mr Carroll sent an email to Ms Dye with a copy to Mr Rochfort and Mr Alomes explaining that the payment was in error. Ms Dye was aware, according to Mr Forby, that this was a mistake and it was open to her to have it corrected. Mr Carroll asked Ms Dye to discuss the matter with Mr Rochfort. He said: “with your authorisation we may recall those additional funds, or if you retain them they will be deducted from any settlement reached. Please let me know your preference.” Ms Dye replied querying the calculations. Mr Carroll responded saying that the calculations were correct. He said:
In view of the current circumstances and indications of an impending settlement being put to the Bank, perhaps you should liaise with your adviser – Peter Rochfort – to ensure that we are not working at crossed purposes.
379 Some days later, on 28 November 2007, Mr Rochfort advised Mr Carroll that Ms Dye had received notification from her superannuation fund confirming that her employment had been terminated. Mr Rochfort asked whether that made academic the question of whether to recall the payment or leave it stand. He said: “I should be in a position to put an overall settlement proposal to Scott Alomes today”. Mr Carroll responded:
The purpose of my call last week [was] to inform you that the redundancy was processed in error and my e-mail to you was to confirm that error. As a consequence of us not “reinstating” Vivienne, then the normal exit systems cut in. If you now want this reversed it can be done but I must have your decision by noon Thursday.
380 Mr Carroll’s email was sent at 9.03 am on Wednesday 28 November 2007. Thursday was the following day. In her evidence, Ms Dye said that she accepted Mr Rochfort’s advice to let the termination stand. A conscious decision was made not to ask the bank to reverse the payment mistake and, in effect, reinstate Ms Dye’s employment.
381 On Friday 30 November 2007, Mr Rochfort sent a letter of demand to the bank. The figures contained in that letter are not in evidence. So far as the evidence in the proceedings discloses, no additional payment was made to Ms Dye as a result. On 20 December 2007, Ms
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Dye made her complaint to HREOC seeking compensation of $1,250,000 and on 24 December 2007 Mr Rochfort forwarded a copy of the complaint to the bank. The initial 170 page statement provided to HREOC was apparently lodged with HREOC on 2 January 2008.
An allegation of contrived redundancy
382 I have already mentioned, and rejected, the argument that Ms Dye was demoted and that her real role remained available. It is convenient to deal here with another argument, that the declared redundancy of her position was the result of a conspiracy between Mr Blomfield and Mr Selvarajah.
383 In spite of her initial appreciation that her text message to Mr Blomfield on 7 December 2006 would inevitably be seen as inappropriate and may perhaps have prejudiced her position in LBB, Ms Dye moved progressively to a position which consisted of the following elements:
Her text message to Mr Blomfield on 7 December 2006 was entirely personal and had nothing to do with a working relationship.
Mr Blomfield was not entitled to show it to Mr Selvarajah and had breached a personal confidence by doing so.
Mr Blomfield decided to retaliate to the text message by arranging, in one way or another, that Ms Dye would lose her position in LBB.
Mr Blomfield enlisted Mr Selvarajah’s aid and Mr Selvarajah thereafter merely gave effect to Mr Blomfield’s intentions and instructions.
Mr Selvarajah’s file notes were a fabrication. The suggestions that Ms Dye’s performance was inadequate in any respect were falsely made to give respectability to the process which Mr Selvarajah commenced to give effect to Mr Blomfield’s desire to bring about the cessation of her employment in LBB.
384 These propositions coalesced ultimately, in the present proceedings, in a contention that the declaration of Ms Dye’s position as redundant was (almost self evidently) simply an alternative way of giving effect to the prior process which had been commenced to “remove” Ms Dye from her position upon the pretext of unsatisfactory performance. There is no element of this scenario which accords with reality. Each element, I am satisfied, is
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decisively rejected by the evidence in the present proceedings. One difficulty for the entire theory is that Ms Dye persisted in maintaining that after she joined LBB, as well as before that time, Mr Blomfield was determined to be close to be her and continued to harbour a desire for an intimate personal relationship. Consistently with this thesis, Ms Dye maintained that she had been “hand picked” by Mr Blomfield to join him in LBB as his close professional support. None of these suggestions accord with reality either. When the incongruity of these propositions was pointed out to Ms Dye in her cross examination, in the light of her accusation that Mr Blomfield was in fact ignoring her, the effect of her response was that this represented feigned indifference and not Mr Blomfield’s true feelings.
385 The truth is quite different. I am satisfied that Mr Blomfield did not arrange for Ms Dye’s employment in LBB, although he acquiesced in Mr Selvarajah’s proposal that she be engaged. He had not attempted earlier to take up a personal, much less an intimate, relationship with her. He did not fail, after she joined LBB, to give her appropriate attention. No particular attention beyond that of any other LBB employee was necessary. Ms Dye was treated no more poorly, in that context, than anybody else. On the contrary, Mr Blomfield appears to have shown considerable patience with Ms Dye’s idiosyncratic behaviour as she used various means to bring herself to his attention and struggled for a closer personal relationship, which she desired but he did not. I am satisfied that her conduct in this respect was the product of her own desire for a close and intimate relationship. When it was not realised it was she, not Mr Blomfield, who decided to take revenge.
386 There is no reason, on the evidence in the present proceedings, to doubt the genuineness and independence of Mr Selvarajah’s assessment of Ms Dye’s work performance. However, ultimately that is not what is critical. There is no reason, on the evidence in the present proceedings to doubt that the decision to declare Ms Dye’s position as redundant was genuine, nor that the declaration itself was genuine.
Investigation by Mr Matthews
387 By about late October 2007, Ms Dye had decided to again make allegations against Mr Blomfield which might be viewed as sexual harassment. She refocussed her suggestion made earlier to Mr Furlong, that she and Mr Blomfield had enjoyed a personal relationship and had adult conversations, to a different suggestion that Mr Blomfield had not only desired a close and intimate relationship with her but had actually behaved in a way amounting to
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sexual harassment. Ms Dye had made some allegations of this character in her workers compensation statement, but they had not been shown to Mr Blomfield and Huxley Hill rejected them.
388 Mr Patterson recalled that in October 2007, Ms Dye telephoned him to tell him she was taking out a sexual harassment case against Mr Blomfield. In her conversation with Mr Patterson, Ms Dye said (to Mr Patterson’s clear recollection): “I’m going to get that cunt, and I’m going to fucking destroy him and his family”.
389 There is some support for Mr Patterson’s recollection. In notes made by Mr Patterson early the following year he attempted to record some particular interactions with Ms Dye during 2007. Unwilling to commit to writing language which he regarded as unacceptably coarse, Mr Patterson used an acronym to identify Ms Dye’s description of Mr Blomfield – it was: caring (c), unsensitive (u), new age (n), 90s type (t). Mr Patterson said in his evidence that the tone of Ms Dye’s voice was venomous, that he recalled it clearly and he would never forget it. I accept his evidence. I reject Ms Dye’s denials. I conclude that about this time Ms Dye determined to have revenge against Mr Blomfield and that she set out thereafter to achieve her objective.
390 Ms Dye’s complaint of sexual harassment by Mr Blomfield (or matters which might suggest that) to Mr Carroll did not occur in the letter she wrote on 22 October 2007 alleging breach of confidentiality; no allegation of any sexual conduct was made in that letter. However, Mr Carroll asked for clarification about some matters in Ms Dye’s letter of 22 October 2007. In her reply dealing with those matters Ms Dye broadened her allegations.
391 Ms Dye attached a new document to her reply letter to Mr Carroll, dated 26 October 2007, which Ms Dye described as “a factual timeline”. She suggested that the “timeline” would assist to understand the “possible motives” behind Mr Blomfield’s 8 June 2007 statement. She said she was “choosing not to elaborate further on these issues at this stage”. Nevertheless, as will be seen, the allegations were examined by the bank. This “timeline” concentrated specifically on Mr Blomfield. It referred to the events on 14 June, 15 June and 8 August 2006 and the intervening period.
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392 At this point, Ms Dye had not given up the idea of getting assistance from Mr Patterson, particularly against Mr Blomfield. On 13 November 2007, Ms Dye, in an email to her solicitor, Mr Gordon Henderson, said: “I think I could get some dirt on Michael from Angus”. Mr Henderson suggested she ask Ms Okano. Ms Dye met with Ms Okano on the same day. From Ms Dye’s point of view the meeting was unproductive. Ms Okano gave evidence about this meeting. She and Ms Dye had not spoken for some time. Ms Okano provided her with no assistance.
393 Ms Dye also raised with Mr Patterson the possibility that he might assist her against Mr Blomfield. However, by then Mr Patterson had been asked by the bank to “step back”. Ms Dye’s allegation of breach of confidentiality had brought Mr Patterson into the picture. Mr Carroll contacted Mr Patterson. He asked Mr Patterson if he was in touch with Ms Dye, to which Mr Patterson responded that he was. Mr Carroll asked him if he was aware of current issues between Ms Dye and the bank and Mr Patterson responded that he was aware that Ms Dye was making a sexual harassment claim against Mr Blomfield. Mr Carroll asked Mr Patterson to remain disengaged and Mr Patterson agreed. Telephone records indicate that the last telephone call between Ms Dye and Mr Patterson was in about mid November. Mr Patterson put the conversation with Mr Carroll at three to four weeks before his last telephone conversation with Ms Dye. Mr Patterson said that in this last conversation he explained to Ms Dye why he could not be directly involved. He said:
I explained to Ms Dye that [the] bank had asked me to step back from, I guess, interacting with Ms Dye until this matter was resolved. Ms Dye then kept asking, “Why, whom did you speak to,” and asked me a series of questions. And [I] just reiterated that the request had been asked of me by the bank. And I remember saying to her, “I’m not sure what else I can do”. And that was the last contact I had with Ms Dye.
394 It was after this that Ms Dye commenced to make increasingly serious allegations against Mr Patterson himself. That did not occur until he had declined to assist her against Mr Blomfield. Up to that point the most serious allegation made against Mr Patterson was that he had in unspecified ways and on unspecified occasions “propositioned” Ms Dye and that they had had “an altercation” in New Zealand. It was only after their conversation in mid-November 2007 that allegations of assault and then digital penetration were progressively made. Even those allegations in their mildest form did not commence until the February 2008 HREOC addendum. The allegations were not contained at all in the initial 170 page statement provided to HREOC on 2 January 2008. I shall explain their
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development a little later. The important point to make at the moment is that Ms Dye’s relationship with Mr Patterson changed at this point. I infer that after Ms Okano and Mr Patterson declined to assist her against Mr Blomfield, Ms Dye decided that she would also have revenge on Mr Patterson, perhaps for some perception that he had abandoned her. In that endeavour she indiscriminately attacked Ms Okano also. She was indifferent to any hurt that might be occasioned to Ms Okano and at one stage in her evidence confessed that she felt nothing for her at all.
395 Although Ms Dye said, when she provided it to Mr Carroll on 26 October 2007, that she was choosing not to pursue the matters that she had included in her “timeline”, the bank asked Mr Matthews, a retired bank officer, to investigate the matters alleged by her. Ms Dye declined to be interviewed as part of that process. On 10 December 2007, in a meeting between Mr Carroll and Mr Rochfort, Mr Rochfort said that Ms Dye would not participate in an interview with Mr Matthews. Mr Matthew’s report of his “preliminary investigation”, which was produced on 14 December 2007, dealt, therefore, with the investigations to that point based on his interviews with a number of people who were present at Le Chifley on 15 June 2006 and at the Westin Hotel on 8 August 2006, as well as Mr Mason. Mr Matthews said in that report that a final report would be dependent on conducting an interview with Ms Dye. That never happened and the report provided on 14 December 2007 represents, effectively, Mr Matthews’ only conclusions.
396 Mr Matthews referred to the fact that Ms Dye, since June 2006, had lodged three formal complaints about the behaviour of her managers. She complained about her immediate manager, Mr Patterson, in June 2006. She complained about her immediate manager, Mr Selvarajah, in March 2007 and she complained about her manager once removed, Mr Blomfield, in her accusation of breach of confidentiality. The first complaint was successfully mediated. No inappropriate behaviour was found in the case of the other two. Mr Mathews recorded:
However, the complaint about Michael Blomfield, which was lodged in October 2007 and related to an alleged breach of confidentiality, was accompanied by a lengthy statement alleging a series of inappropriate behaviours by Michael during the period 14 June – 8 August 2006. In this statement Vivienne alleges that she was, at various times, uncomfortable, distressed, embarrassed and offended.
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397 Mr Matthews interviewed a number of people, 13 in all, including Mr Blomfield. They were persons who were present on one or other of the occasions at Le Chifley on 15 June 2006 and at the Westin Hotel on 8 August 2006. Mr Matthews recorded:
Vivienne Dye’s statement sets out her allegations in considerable detail. She has not specifically alleged sexual harassment or similar misconduct, but has described some behaviour which could be interpreted as such.
Numerous comments in the statement are framed in a way which suggests that, during the period 14 June 2006 to 8 August 2006, Michael Blomfield was attracted to Vivienne Dye and went out of his way to be in her company and to convey his feelings. Other comments suggest that Vivienne was uncomfortable with the attention and confused by Michael’s behaviour. The statement is silent on the period since August 2006.
Michael Blomfield has denied any interest in developing a relationship with Vivienne and has suggested witnesses who could confirm that, in fact, Vivienne had made the unwelcome advances.
398 Mr Matthews referred to Mr Blomfield’s response about events on 15 June and 8 August 2006 in the following way:
He explained that his decision to walk home with Vivienne was, on both occasions, based on a wish to stop her unwelcome advances, which were first evident at the 15 June 2006 function. He chose this option rather that [sic] creating conflict in front of others, or calling her into his office. Michael is aware that this action put his reputation at risk, and he has made it clear that he would not choose the same option again.
399 Mr Matthews’ conclusions were expressed in the following way:
Without an interview with Vivienne Dye, firm conclusions are difficult to make.
However, the investigation has found nothing to substantiate Vivienne Dye’s allegations of inappropriate behaviour by Michael Blomfield.
This, together with Michael’s openness and credibility during the investigation, and the strong support of witnesses, suggests it is unlikely that he acted inappropriately.
400 Attached to Mr Matthews’ report were summaries of his discussions with the 13 people with whom he spoke as part of the investigation. Those reports did not support Ms Dye’s versions of events and did support Mr Blomfield’s. Some of the persons with whom Mr Matthews spoke described Ms Dye in ways which were not particularly to her credit. For example, she was described as an attention seeker, somebody who was blowing her own trumpet, somebody who was sensed to be manipulative and capable of entrapment. Those observations, offered from personal experience, are consistent with the picture which
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emerged during the present proceedings. The conclusions reached by Mr Matthews are consistent with those to which I have come myself having heard much more extensive material than was possible for him. In short, Ms Dye’s claims were investigated and found to be without any substance.
PARTICULAR ALLEGATIONS OF SEXUAL HARASSMENT
401 Before I discuss specific allegations, it is necessary to say something about the way in which Ms Dye progressively rewrote and embellished a number of allegations over the years before the present proceedings were heard. Some of the major changes occurred after the Federal Court proceedings had been commenced.
Ms Dye’s various written statements
402 There were a number of documents, finally, in which Ms Dye at various times recorded allegations of sexual harassment or misconduct against either Mr Patterson or Mr Blomfield. Efforts were made during the course of the proceedings to tender the whole of each of these documents into evidence in their own right. Substantial parts of certain documents were ultimately received in evidence as they met various tests for admissibility. In the case of some documents, only extracts were ultimately accepted but they concerned those parts of the statements which reflected matters pursued in the present proceedings.
403 The documents were directed to different objectives. Some documents were created in support of Ms Dye’s claim for workers compensation, where the principal complaint was mismanagement of Ms Dye by Mr Selvarajah. Later documents, such as the “timeline”, were written with Mr Blomfield more clearly in mind for criticism. After Ms Dye’s employment ended her tactical objectives were wider and the field of allegations broadened accordingly, sometimes astonishingly. These developments will be considered in respect of particular allegations against either Mr Patterson or Mr Blomfield when I deal with those matters in greater detail.
404 The first of the documents, which it is alleged Ms Dye wrote as a record of her allegations, was said to have been drafted in response to Mr Blomfield’s suggestion on about 27 June 2006 that Ms Dye should write down in “black and white” the basis for her suggestion that Mr Patterson was determined to fire her because she would not have sex with
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him. At this stage, as I have earlier described, Ms Dye was resistant to giving Mr Blomfield any detail of these allegations. She confined herself to saying to Mr Blomfield that when she would not join Mr Patterson’s “hide the sausage club” he had a “perversely nasty reaction” and, when asked for any prior indication of Mr Patterson’s behaviour, that he had said something about one of them bringing “sex toys” to New Zealand. Ms Dye asserted that the “black and white statement” was then written by her in accordance with Mr Blomfield’s suggestion and parts of it were read by her to Mr Carroll. I do not accept that the document was drafted at that time, or for that purpose, or that any part of it or anything like it was read to Mr Carroll. There are a number of reasons for this conclusion.
405 First, the document does not say anything about the New Zealand trip itself and it is in two distinct parts, with different formats. It may not be a single document at all. The first part is a document that bears 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. It concentrated on Mr Patterson’s relationship with Ms Okano. The second part of the document is quite unstructured and contains some observations in note form, often unconnected. Secondly, both Ms Dye and her mother were adamant that Ms Dye wished at all costs not to raise any allegation of sexual harassment against Mr Patterson in mid 2006. The contents of the document (treating it as a single document despite its character) would be capable of being viewed as suggestions that Mr Patterson had misconducted himself towards Ms Okano (a CommSec employee). I am satisfied that Ms Dye did not intend at this point in time to make any suggestion of sexual aggression or sexual harassment against Mr Patterson, even in relation to someone else, like Ms Okano. Thirdly, I am satisfied that any suggestion of sexual harassment by Mr Patterson which 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. Ms Dye’s own orientation seems to be to assume that men are sexually attracted to her and that they conduct themselves with that as a significant motivation. Nevertheless, it will be necessary for me to refer from time to time to this document because, accepting it as an initial draft of some allegations against Mr Patterson, it deserves comparison with things said in later documents and in Ms Dye’s evidence in the proceedings. I shall refer to this document, when necessary, as “the black and white statement”.
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406 In February 2007, Ms Dye produced a document to support her claim for a fair treatment review. It concentrated on Mr Selvarajah and said nothing about Mr Patterson or Mr Blomfield. I shall refer to it where necessary as “the issues statement”. It is important to appreciate next (putting aside the black and white statement) that no written suggestion or any written record of an allegation of sexual harassment by Mr Patterson or Mr Blomfield was in the hands of the bank before Mr Mason carried out his fair treatment review, which he completed in late March 2007. I accept Mr Mason’s evidence that nothing was said to him by Ms Dye during his investigation to the effect that Mr Blomfield had sexually harassed her. She did tell him that Mr Blomfield had walked her home after drinks at night but this did not amount to an allegation of sexual harassment. I am satisfied it was not intended as one at that time and was not treated by Mr Mason as an allegation of that character. At this time, Ms Dye wanted to report to Mr Blomfield. That was the very purpose of the fair treatment review, her statement of the issues arising in connection with it and her suggestion of the appropriate solution to those issues.
407 After she went on sick leave, avoiding Mr Selvarajah’s proposed meetings with her on 15 and then 16 March 2007, Ms Dye decided, on the advice of her medical practitioners, to lodge a workers compensation claim in an effort to recover the cost of her consultations with Dr Parmegiani in particular. The workers compensation claim was dated 30 April 2007 and was lodged on 4 May 2007. Ms Dye declined to permit Huxley Hill to take a statement from her to which she would subscribe. Instead she insisted on providing them with her own written document which ranged well beyond matters which would possibly be relevant to her workers compensation claim. The document provided to Huxley Hill initially was 126 pages long. It dealt with the period to 12 February 2007, which was the only period relevant to the foundation for her claim for workers compensation. Huxley Hill’s report was compiled on 14 June 2007. On 20 June 2007, Ms Dye sent more material to Ms Adams. This supplementary material dealt with the period from 1 February 2007 to 31 May 2007. The documents provided in support of the workers compensation claim, referred to most of the incidents and events upon which Ms Dye later relied to claim sexual harassment by Mr Blomfield, but did not do so in a context where at that stage she actually characterised his conduct as sexual harassment. On the contrary, at that stage, the suggestion was that Ms Dye and Mr Blomfield had entered into a personal relationship, outside their work relationship, and that this was largely explanatory of what had happened to Ms Dye and the reasons for Mr Selvarajah’s
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conduct against her. I shall refer to all the material provided in this way as the “workers compensation statement”.
408 There were also some references in this material to Mr Patterson having “propositioned” Ms Dye and there was reference to an altercation in New Zealand but there was no suggestion of any physical misconduct by Mr Patterson on any of the dates in respect of which Ms Dye subsequently alleged such conduct. This document appears to be the first one in which Ms Dye actually alleged that Mr Patterson propositioned her. Such an allegation did not appear even in the black and white statement. The allegations which were made in the workers compensation statement, in the most general of terms, were not brought to Mr Patterson’s attention. He was not interviewed by Huxley Hill. Any suggestion about Mr Patterson’s general conduct appears to have been regarded (probably correctly) as having nothing at all to do with Ms Dye’s claim for workers compensation, which was based upon the proposition that Mr Selvarajah (and perhaps Mr Blomfield) had acted upon the false or wrong premise that her work performance was inadequate.
409 The next document was the one forwarded to Mr Carroll on 26 October 2007, which Ms Dye referred to as a “timeline” of events concerning Mr Blomfield. It dealt with the period from 14 June 2006 to 8 August 2006. There was no reference in this document to any propositioning by Mr Patterson, even though he was mentioned during this period. The intent of this document was clearly to concentrate on Mr Blomfield’s conduct, still for the purpose of suggesting his, and Mr Selvarajah’s, motivation in relation to Ms Dye’s employment. At this time, Ms Dye’s employment had not come to an end. Ms Dye had arranged to have herself declared fit for a return to full duties without restriction. She had been returned to full salary. Her position had not yet been formally declared redundant. I shall refer to this document, as I have already, as the “timeline”.
410 On 20 December 2007, Ms Dye made a complaint to HREOC. A copy of the complaint was provided to the bank on 24 December 2007. In support of that complaint Ms Dye initially provided a statement of 170 pages. A “final version” of this statement was emailed to Ms Dye’s solicitor, Mr Henderson, on 2 January 2008. Mr Henderson perused it on 3 January 2008 and made suggestions for its supplementation. It seems that the statement was provided to HREOC also on 2 January 2008. I will refer to it as the “2 January 2008 HREOC statement”. This document made detailed allegations against Mr Blomfield to the
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effect that he had sexually harassed Ms Dye on 15 June 2006 and 8 August 2006, but it said relatively little about Mr Patterson, compared with later versions.
411 Mr Henderson had conferred with Ms Dye on 12 November 2007 after her position was declared redundant but before her employment actually came to an end. He made notes of the conference. After he read the 2 January 2008 HREOC statement on 3 January 2008 he encouraged Ms Dye to include further material in her complaint to HREOC about Mr Patterson and not to leave out the “juicy and offensive bits”. Before her employment came to an end, Mr Patterson had not really figured at all in Ms Dye’s allegations or plans. She had resolved the issue in New Zealand to her advantage. She had moved on at work from Mr Patterson, although she retained him as a sounding board, at least for the time being. When Mr Patterson declared himself unable any longer to help, Ms Dye turned her attention to him. At the same time Ms Dye was faced with the task of extracting a settlement from the bank which it would not give voluntarily. On 11 February 2008, Mr Rochfort sent additional material to HREOC. He identified it both by content, and the purpose for which it was to be used, as material which made more serious (perhaps criminal) allegations against Mr Patterson and further allegations against Mr Blomfield. I shall refer to this material as the “February 2008 HREOC addendum”.
412 Ms Dye’s evidence was that the February 2008 HREOC addendum was constructed by first making a final consolidated statement for HREOC, providing it to HREOC and then responding to a suggestion from HREOC that to avoid duplication the additional material should be extracted and provided separately so that it would supplement, without repeating, the material in the 2 January 2008 HREOC statement. I reject this explanation. The February 2008 HREOC addendum contained material that also appeared in the 2 January 2008 HREOC statement. It contained material that did not appear in a later version to which I will refer in a moment. The later version contained material which was not in this document. In my view, the position put to HREOC is as I have stated it.
413 The February 2008 HREOC addendum contained allegations that Mr Patterson had propositioned Ms Dye a number of times. It said that he constantly made comments about her breasts and backside during the day in the office while she was trying to work. It said: “I cannot remember being alone in the office with Angus without him propositioning me for sex”. This allegation was later given prominence by The Daily Telegraph. The February
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2008 HREOC addendum also contained an allegation that Mr Patterson had assaulted Ms Dye on 31 May (or 1 June) 2006. Mr Rochfort sent the February 2008 HREOC addendum to HREOC by email, which included advice to HREOC that he wished to specifically raise the new alleged conduct by Mr Patterson at a conciliation conference on 20 February 2008. Mr Rochfort copied the email directly to Mr Norris and then also sent a copy of his email and the February 2008 HREOC addendum to the bank’s solicitor, Mr Glenn Fredericks, and asked that he bring it to the attention of Mr Norris.
414 The February 2008 HREOC addendum also added some further detail about Mr Blomfield. It made an explicit suggestion that at one point, outside Ms Dye’s apartment on 15 June 2006, Mr Blomfield was trying to conceal an erection. It included the following additional statement:
It was inconceivable to me at the time that a married man with two children who had just been promoted to Executive General Manager could be so reckless as to risk everything for a one night stand. I therefore concluded that Michael Blomfield was in love with me.
415 Mr Rochfort’s email to HREOC (which he asked to be drawn to the attention of Mr Norris) also said that he would draw attention to the conduct of Mr Blomfield which was set out in the new document. It is impossible to resist the inference that these additional items were put before HREOC, and an attempt was made to draw them to Mr Norris’ attention, shortly before the conciliation conference to be held on 20 February 2008 in an endeavour to “raise the stakes” and put additional pressure on the bank with respect to the conduct of both Mr Patterson and Mr Blomfield.
416 Mr Patterson’s evidence was that when the statements were provided to HREOC and to the bank he was interviewed by Mr Fredericks and asked about Ms Dye’s allegations. He was not shown the written allegations at that stage, but Mr Fredericks read some of them out to him. Nevertheless, in my view, this is an indication that the bank investigated the allegations against Mr Patterson in the HREOC statements (i.e. the 2 January 2008 HREOC statement and the February 08 HREOC addendum) and decided with respect to Mr Patterson, as well as Mr Blomfield, that the allegations were without substance. It is a matter of record that the conciliation conference, which was either rescheduled to, or continued on, 26 March 2008, did not result in a settlement.
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417 The later, consolidated, document I referred to a little earlier is 181 pages long. The version admitted into evidence bears the title “January 2008 HREOC Statement” but it appears that there were at least two other versions of this same document. One was entitled simply “January 2008 Statement”. Another version was a “marked up” version of the same document which was provided to Ms Vanda Carson on 7 April 2008. The 181 page document entitled “January 2008 HREOC Statement” was, in my view, probably put into its final form in March or April 2008. It may have been intended for distribution to the media. That is certainly one use to which it was put. It was not provided to HREOC. I shall refer to this 181 page statement as the “April 2008 published allegations” as I have earlier, to reflect its actual use.
418 On 24 July 2008, the Federal Court proceedings were commenced after the HREOC proceedings were terminated. Mediation was conducted in November 2008. Mediation was unsuccessful. On 2 January 2009, Ms Dye sent Mr Rochfort an email setting out different and additional allegations against Mr Patterson with respect to 1 and 2 June 2006, including, for the first time, an allegation of digital penetration which was alleged to have occurred on 1 June 2006. Five days later, Ms Dye sent an email to Mr Rochfort’s secretary, Ms Bec Tasli, containing a rewritten version of the allegation of digital penetration, placing it at 9 June 2006 with different surrounding circumstances. A further alleged assault by Mr Patterson was, in this document, attributed to 13 June 2006. I shall refer to these allegations as the 2 January and 7 January 2009 emails.
419 Shortly thereafter, Ms Dye, or somebody on her behalf, forwarded to the NSW Police a document which was described as a “civil affidavit”. That document is not in evidence. A written statement dated 13 February 2009, signed on 2 March 2009, made formally to the NSW Police is in evidence in almost its entirety. It incorporates the accounts for 9 and 13 June 2006, which are in the 7 January 2009 email. It also includes allegations against Mr Patterson of further sexual harassment and assault on 16 June 2006 and a further assault on 13 April 2007. I shall refer to this document as the “February 2009 police statement”.
420 Throughout all this, the factual circumstances from which the allegations against Mr Blomfield arose remained largely unaltered, although the characterisation of those events changed. Perhaps Ms Dye had committed herself to those factual matters too early to feel able to change them radically. She obviously felt no such inhibition in relation to Mr
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Patterson, where additional allegations were freely added from time to time. The result was, bitterly ironic perhaps, that the substance of the allegations against Mr Blomfield (Ms Dye’s real target at the end of 2007) remained “sleaze”, whereas the allegations against Mr Patterson (Ms Dye’s friend and supporter) were of extremely serious criminal conduct. It is difficult to find a kind word to say about this, or about the way Ms Dye and her advisors have pursued her false claims to the end, perhaps hoping for some last minute settlement. It is not part of my task to offer any opinion about the psychology involved in this sad and distressing saga and I shall refrain from doing so. There is, however, nothing to be said legally for any of Ms Dye’s contentions and, if I might permit myself at least this observation, nothing to be said for them by reference to any standard of decency.
421 There is no really convenient order in which to deal with the specific allegations of sexual harassment. Apart from the suggestion to Mr Blomfield on 26 June 2006 that Mr Patterson had propositioned her, when Ms Dye was obviously seeking an alternative position only three weeks after settling her position description with Mr Patterson, Ms Dye’s relationship with Mr Patterson and Mr Blomfield appeared to exist in two separate spheres. There was never any suggestion by Ms Dye during her employment that at the same time as the supposed overtures by Mr Blomfield she was fighting off Mr Patterson and had been twice seriously sexually assaulted by him before the occasion at Le Chifley, only days earlier. That is because, in my view, the alleged assaults by Mr Patterson simply did not happen, they were invented later.
422 In the absence of a better alternative I shall simply deal with the particular allegations of sexual harassment in the order in which things allegedly occurred according to Ms Dye’s evidence in the present case. In that way, some idea of the overall unreality of the allegations may also emerge.
13 April 2006 (Establishment Bar and afterwards)
423 On this evening, Ms Dye attended drinks after work with Mr Patterson, Ms Okano and Mr Phillipp. Ms Dye suggested there were other male friends of Mr Patterson at the bar initially but that is of no particular significance.
424 Ms Dye’s assertions about this evening fall into two groups. First, she alleged that Mr Patterson asked her some questions of a highly personal nature, which she considered to be
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inappropriate and sexually suggestive. They were: when did she last have a boyfriend and when did she last have sex. He also told her, according to Ms Dye, that he would only engage her if she allowed him to flirt with her. I do not accept these assertions, which were denied by Mr Patterson and for which there is no other support.
425 The second group of assertions have little connection with any of Ms Dye’s causes of action. Most of these assertions seem designed to present Mr Patterson as a callous, unfeeling person who would sexually exploit another, perhaps to the point of “rape”. That contention, and the alleged facts upon which it is based, I am satisfied are without foundation.
426 Mr Patterson and Ms Okano were attracted to each other. At one point Ms Dye saw them kissing. That was their business only. After drinks at Establishment Bar Ms Dye, Mr Patterson, Ms Okano and another man adjourned to a hairdressing salon owned by the other man. Ms Okano gave evidence that it was Ms Dye’s idea to go to the salon because she was thinking of having her hair done there. Ms Dye’s evidence was that at the salon Mr Patterson and Ms Okano were ostentatiously physical with each other. They deny it. I am satisfied it did not happen. Later the three of them (Ms Dye, Mr Patterson and Ms Okano) went to Ms Dye’s apartment. Ms Okano had an apartment in the same building. Mr Patterson and Ms Okano said it was Ms Dye’s idea that they all go to Ms Dye’s apartment. I accept their evidence. Again, Ms Dye suggested that they were ostentatiously physical towards each other. I reject that contention, which is denied by each of Mr Patterson and Ms Okano.
427 After Mr Patterson and Ms Okano left Ms Dye’s apartment, they went to Ms Okano’s apartment and had consensual sex. I am satisfied, on Ms Okano’s evidence, that she was a completely willing participant in this encounter and that there was nothing untoward about Mr Patterson’s behaviour towards her on this evening or otherwise. The following morning Ms Okano rang Ms Dye and confessed that she felt some sense of shame or misgiving about having had sex with Mr Patterson, as he was married. She insisted in her evidence that her feelings had nothing to do with, and were no reflection on, Mr Patterson. I accept that evidence. Ms Dye’s version of events about this conversation varied over time. At times she said Ms Okano alleged she felt as though she had been raped. At other times she alleged that Ms Okano said she had in fact been raped. Ms Dye also attributed to Ms Okano various assertions concerning Mr Patterson’s conduct which Ms Okano emphatically denied and which attributions I am satisfied were untrue. Ms Okano was employed by CommSec.
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Although she did not work for or with Mr Patterson she was, in that sense, another employee in the overall service of the bank. Eventually, Ms Dye’s version of these events appears to have been advanced as evidence of Mr Patterson’s poor moral character and his preparedness to conduct himself inappropriately towards other employees.
428 The intrusion on Ms Okano’s privacy, which Ms Dye’s allegations about these matters represents, is most regrettable. Not only were the allegations which she attributed to Ms Okano against Mr Patterson false, Ms Dye, without any apparent compunction, divulged and paraded before others intimate and distressing matters from Ms Okano’s personal history. I would not enter upon a discussion of any of this material were it not necessary to explain why I reject what Ms Dye has said about these events. Having regard to the way Ms Dye’s case was conducted that has become inevitable.
429 The apparently first version of these matters committed to writing was in the black and white statement. It does not bear a precise date but obviously relates to 14 April 2006. Ms Dye recorded that Ms Okano called her at 6 am and was emotional. She said she spent the day with Ms Okano. That was not true. In the February 2008 HREOC addendum, Ms Dye offered a highly charged account in which she attributed to Ms Okano an allegation against Mr Patterson that he had forced himself upon Ms Okano the previous evening after they left Ms Dye’s apartment, handled her roughly, treated her callously and that it brought back memories to Ms Okano of being raped some years earlier. Ms Dye attributed to Ms Okano the suggestion that having sex with Mr Patterson had made Ms Okano feel violated. I am satisfied that these attributions to Ms Okano were all false. Ms Okano denied them categorically in her evidence.
430 This is a convenient point at which to make a comparison between the black and white statement and the workers compensation statement for another purpose. In the black and white statement (supposedly in June 2006) Ms Dye’s account of the conversation with Ms Okano was presented as follows:
▪ Emma called me at 6am. ▪ She was emotional. ▪ I spent the day with Emma, who presented a number of claims about her and Angus’ actions after they’d left my house. ▪ She asked for my advice. ▪ I entertained the conversation for a time, but refused to give her advice. ▪ I then indicated that I didn’t want to discuss her situation with her, in
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protection of my job.
431 In the workers compensation statement (in June 2007) the same events are described in the following terms:
14 April 2006
• Emma called me in a highly emotional state at 6:00am that day. • I spent the day with Emma, who presented a number of claims about her and Angus’ actions after they’d left my house and asked for my advise [sic] on dealing with her situation. • I entertained the conversation for a time, but refused to give her advice, telling her that I had no experience with “dalliances with married men”. • I then indicated that I didn’t want to discuss her situation with her, in protection of my job.
432 The similarities are unmistakeable. I think it likely that the black and white statement was created much later than June 2006. It certainly served as a foundation for elements of the workers compensation statement.
433 In a statement of evidence prepared for the present proceedings, Ms Dye made the following assertion:
The following morning Okano called me. She was crying. She said “Patterson raped me last night after we left your apartment”.
434 Ms Dye’s oral evidence did not go so far as this statement. In her cross examination she vacillated amongst various versions given in a number of written statements. Ms Dye may have thought when she advanced the written statement of her proposed evidence that Ms Okano would not give evidence in the proceedings. Ms Okano did give evidence. I am more than satisfied that both in terms and in substance any allegation that Ms Okano said she had been raped, or felt like she had been raped or that Mr Patterson had mistreated her in any way or in any sense were false. Ms Okano did not say such a thing, nor did she think it. This incident was twisted by Ms Dye to suit her own purposes which became, progressively, her desire to attack Mr Patterson and to suggest that he was somebody who had indecently assaulted her and would treat other women callously as well.
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1 June 2006 (dinner at a Chinese restaurant and afterwards)
435 In her workers compensation statement, nothing untoward was mentioned about Mr Patterson’s conduct on 1 June 2006. Ms Dye commenced her entries for 1 June 2006 in the following way:
• New Position Description (PD) confirmed on 1 June 2006. • This PD stated that my job title and role function had changed and Angus told me that I was equivalent to an Executive Manager Level 3. • As such, I was instructed to do business with no employees below Level 4, i.e. the General Management.
436 It is worth mentioning in passing that the second and third of these entries contained falsehoods. Ms Dye was not told she “was equivalent to an Executive Manger Level 3”. She was not “instructed to do business with no employees below level 4, i.e. the General Management”. These were outright inventions on Ms Dye’s part. However, it is true that on the evening of 1 June 2006 Mr Patterson settled a position description for Ms Dye based upon a draft which she had provided to him which he substantially amended. The position was “business analyst”, a generic role within the bank and CommSec and was at level 2. The settled version was emailed by Ms Dye to Mr Patterson on 2 June 2006.
437 In the 2 January 2008 HREOC statement, the account for 1 June 2006 was substantially the same as in the workers compensation statement. Nothing untoward was suggested against Mr Patterson. The 2 January 2008 HREOC Statement contained one suggestion that Mr Patterson had propositioned Ms Dye a number of times but omitted other such suggestions which appeared in the workers compensation statement. Like the workers compensation statement, it contained no detail whatsoever of such occasions. It omitted the reference to having an altercation with Mr Patterson in New Zealand which had appeared without amplification in the workers compensation statement.
438 The position description for Ms Dye’s position of business analyst was settled over dinner at Mr Chow’s Chinese restaurant on Kent Street, Sydney. Following dinner, Ms Dye and Mr Patterson went to the Observatory Hotel for a drink. In her evidence in the proceedings, Ms Dye said that after drinks at the Observatory Hotel they went to the library in her apartment building and had tea. That was not the version of events which she earlier gave.
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439 Commencing with the February 2008 HREOC addendum, Ms Dye alleged that after a drink at a bar between the restaurant and her apartment block Mr Patterson walked her home and then insisted upon being allowed to come to her apartment for tea. When they entered the apartment he picked her up, carried her to her bedroom and threw her down on the bed. He then proceeded to assault her with a view to imposing upon her sexually. Ms Dye said that her protestations eventually had the result that he desisted, pulled up his pants and left immediately “never again mentioning the incident”. The same version was contained in the April 2008 published allegations. This was the version made available in its entirety on The Daily Telegraph website.
440 In the 2 January 2009 email, this version was the subject of substantial elaboration. The Observatory Hotel was identified for the first time as the place where Mr Patterson and Ms Dye took their after dinner drink. Ms Dye’s account continued to suggest that after that drink they went to her apartment building and Mr Patterson insisted on coming up for tea. She then gave a very detailed account of Mr Patterson’s alleged conduct. It was a graphic description of a serious sexual assault upon her, leaving nothing to the imagination, culminating in digital anal and vaginal penetration. In this document also, Mr Patterson was said to never again mention the incident.
441 Five days later, in the 7 January 2009 email, Ms Dye gave an account of events on Thursday, 1 June 2006 where drinks at the Observatory Hotel were not followed by any assault, but by tea in the library at Ms Dye’s building where she and Mr Patterson discussed work matters for 45 minutes to one hour. In this document the allegation of digital, vaginal and anal penetration was transferred to 9 June 2006 following drinks at a different hotel. In this document Mr Patterson did mention the incident again. Ms Dye alleged that he did so in a telephone conversation the following morning. This was the version which, in substance, was given to the NSW Police and became the subject of the statement made on 13 February 2009, formally signed by Ms Dye on 2 March 2009. It is the version which was given in evidence by Ms Dye in the proceedings.
442 The allegation published in April 2008 in the media, that Mr Patterson assaulted Ms Dye in her apartment on 1 June 2006 (by throwing her on the bed and pinning her wrists down), was in terms of the physical force used the most serious allegation then made against him. The conduct of Ms Dye’s own case in the current proceedings demonstrated that any
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allegation of sexual harassment or sexual assault by Mr Patterson on 1 June 2006 was untrue. So far as the present proceedings are concerned, the allegation published in the media in April 2008 to the effect that Mr Patterson had assaulted Ms Dye on 1 June 2006 (with full details being made available for the interested reader) was abandoned.
9 June 2006 (Ms Dye’s apartment)
443 It will be necessary to retrace some earlier steps in order to explain the bases for the allegations made about 9 June 2006, a date not mentioned until 2009. Before the February 2008 HREOC addendum, accusations against Mr Patterson had been confined to the suggestion that in unspecified circumstances and on unspecified occasions Mr Patterson had propositioned Ms Dye a number of times. Ms Dye made that suggestion in her workers compensation statement in a number of places. In the 2 January 2008 HREOC statement even some of those references were omitted although the following matters remained under the date 13 June 2006.
• I told Angus that day that I was excited about the opportunity to travel to New Zealand however I wanted to be clear that there would be no obligation on my behalf to sleep with him … • Angus assured me that there was no obligation, but asked if he could bring his sex toys on the trip. • I told Angus once again that under no circumstances would I be having an affair with him. He had propositioned me a number of times already.
444 This statement, however, contained no reference to any altercation on 22 June 2006. Indeed it made no reference to anything which happened in New Zealand directly, although the following entries were included concerning conversations with Mr Blomfield the following week:
• I told Michael that my relationship with Angus had crossed into a personal space due to the fact that he was having an affair with a friend of mine who worked for the Bank and lived in the same apartment block as me. I told Michael that I was not having an affair with Angus, but that he had now turned his attention to me and that I had rejected this attention. • Michael asked for examples of Angus’ behaviour. • I thought it was inappropriate for Michael to be demanding this sort of information, however, in my own defence, I provided one example: “Can I [Angus] bring my sex toys to New Zealand with me?”
445 In the February 2008 HREOC addendum, Ms Dye made specific allegations for the first time against Mr Patterson. The entries appeared under a heading “31 May 2006” but Ms
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Dye insisted that a heading for 1 June 2006 was inadvertently omitted. I will accept that is so for present purposes. The entries commenced by recording that Ms Dye met with Mr Patterson at 5.30 pm to walk to a nearby Chinese restaurant for dinner. It is common ground that Mr Patterson and Ms Dye did go to dinner at a Chinese restaurant on the evening of 1 June 2006 and on that occasion Mr Patterson settled her position description. It is common ground that Mr Patterson and Ms Dye went to the Observatory Hotel for a drink after dinner. The entries continued, unbroken, with an account of how Mr Patterson walked Ms Dye to the front door of her building, insisted on coming up for tea and upon entering her apartment assaulted her with a view to taking some form of sexual gratification. As I said when I referred to this incident a short while ago, Ms Dye concluded the account by saying that Mr Patterson never again mentioned the incident. This account of an assault on 1 June 2006 was part of the additional material sent by Mr Rochfort to HREOC to be used in a conciliation conference to advance Ms Dye’s claims. Presumably, Ms Dye’s account had been carefully considered before that happened. In the February 2008 HREOC addendum the next entry was for 13 June 2006. There was no reference at all to 9 June 2006.
446 In the 2 January 2009 email, the description of Mr Patterson’s alleged conduct on 1 June 2006, of picking Ms Dye up and throwing her on the bed, was changed and significantly extended to include a more violent struggle and an allegation of digital vaginal and anal penetration. This account remained located in time at 1 June 2006. It commenced with Ms Dye and Mr Patterson meeting at 5.30 pm to walk to a nearby Chinese restaurant. It included drinks at the Observatory Hotel afterwards. It moved without interruption, as before, to the insistence by Mr Patterson that he come up to the apartment for tea and Ms Dye’s eventual agreement. It then moved seamlessly into the allegation of assault and a graphic description of digital penetration accompanied by the use of considerable physical force. This account also was accompanied by the statement that Mr Patterson never again mentioned the incident.
447 Five days later, Ms Dye sent the 7 January 2009 email to Ms Tasli. It contained a different account of alleged events on Thursday, 1 June 2006. Again the account commenced with Ms Dye and Mr Patterson meeting at 5.30 pm to walk to a nearby Chinese restaurant. Again the account included drinks afterwards at the Observatory Hotel. Again the account included Mr Patterson asking to come upstairs for tea. On this occasion, however, the account for Thursday 1 June 2006 terminated with Ms Dye serving tea to Mr Patterson in the library in her apartment building and with their conversation about work matters for 45
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minutes to an hour. In this document the alleged digital penetration was moved to Friday, 9 June 2006. It was introduced with a completely different scenario.
448 In the new account, Ms Dye said Mr Patterson approached her on the morning of Friday 9 June 2006 and suggested drinks after work at the CBD Hotel across the road from their office. She felt unable to decline. At 5.30 pm she asked Mr Patterson if he was ready and he said the arrangements had been changed and he would pick her up at 8.30 pm. She resisted but reluctantly agreed to attend. They met Mr Phillipp there whom Ms Dye had met at Establishment Bar on 13 April 2006.
449 After drinks Mr Patterson walked Ms Dye home. From this point the account which Ms Dye gave was the same account of digital penetration which she had five days earlier attributed to 1 June 2006 and the earlier parts of which (picking her up and throwing her on the bed) she had attributed to 1 June 2006 since February 2008. There was one important change. Ms Dye alleged that the following day, Saturday 10 June 2006, Mr Patterson rang her and said he wanted to talk about what had happened.
450 Apart from the fact that the surrounding circumstances had been completely rewritten in this account, there are some independent reasons to conclude that the account of the new surrounding circumstances could not be accepted, even if the allegations were being advanced for the first time. First, Ms Dye insisted that the arrangements for the time of drinks were changed at 5.30 that evening. It was this alteration that explained why she was wearing jeans, which was a detail of the latest version which had been added. The difficulty with the suggestion that the time was changed at the last minute is that on Friday 9 June 2006, after Mr Patterson had rung her at 8.32 am, Ms Dye created an Outlook calendar event at 9.43 am which read: “Drinks with Angus and Grant”. The start time was 8.30 pm. It is evident therefore that the arrangement for drinks was always one for 8.30 pm. Ms Dye’s evidence to the contrary was false.
451 Another difficulty for her account is that Mr Patterson could only remember being with Ms Dye and Mr Phillipp together on three occasions. One was at Establishment Bar on 13 April 2006. Another was watching a soccer match on 12 June 2006 with which I shall deal next. The third was at the CBD Hotel. However it was not at the CBD Hotel on 9 June 2006. Mr Patterson’s recollection was Mr Phillipp wore an identical jacket to his own on the
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occasion at the CBD Hotel. It was moleskin. Ms Dye sent an email to Mr Patterson on Monday 18 September 2006 inviting him to join her for coffee on Friday 22 September 2006 at 3 pm at Hugo Boss. The email contained a message in the following terms: “Hi, can’t believe you and Grant both have the same moleskin jackets. You know you should be embarrassed about that don’t you? Anyway, would love to catch up if you’re free for a spot of shopping (for jeans)”. Those matters suggest that the occasion when Ms Dye met with Mr Patterson and Mr Phillipp at the CBD Hotel (when they were both wearing moleskin jackets) was most likely Friday 15 September 2006, rather than Friday 9 June 2006. That is less conclusive than other matters but added to them is not without some significance.
452 The next problem for Ms Dye’s new account is that the telephone records deny that, as she alleged, Mr Patterson rang her on her mobile phone from his mobile phone on Saturday, 10 June 2006. No such telephone call was made.
453 There is a further matter to be mentioned. Mr Patterson agreed that after drinks at the Observatory Hotel on 1 June 2006 he had tea with Ms Dye in the library of her apartment building. That occurred at Ms Dye’s invitation. They were admitted by the Concierge who had to open the door electronically from his desk. There was no suggestion that the Concierge would be unable to confirm Mr Patterson’s entry into the library in the building on 1 June 2006. That would falsify any suggestion (which was the consistent suggestion until 7 January 2009) that Mr Patterson went that evening to Ms Dye’s apartment and sexually assaulted her. Whether or not any such consideration was a motivation for the change in Ms Dye’s account, the abandonment, for the present proceedings, of any suggestion of wrongdoing by Mr Patterson on 1 June 2006 is striking. The rewriting of the surrounding circumstances to provide a different introduction to the same alleged sexual assault on 9 June 2006 is astonishing. It cannot be the result of correcting a faulty memory.
454 The account in the 7 January 2009 email that Mr Patterson digitally, vaginally and anally penetrated Ms Dye on 9 June 2006, and of the surrounding circumstances, was the account which Ms Dye gave to the NSW Police and which was incorporated in her February 2009 police statement signed by her on 2 March 2009. I am satisfied that the account was entirely false. It was a fabrication from beginning to end. It was no doubt advanced for the purpose of attempting to secure an advantage, either in the proceedings which had been commenced or by way of settlement. The February 2009 police statement was made after
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proceedings had been commenced in this Court. An application to amend the pleadings to rely on the allegations contained in the police statement was rejected by a Judge of this Court but was allowed on appeal. That application seems to me to have abused the processes of this Court, but given the scale of the untruths told by Ms Dye in the present proceedings that is a relatively small matter in the overall scheme of things.
455 Regrettably, the dishonesty and false evidence associated with this allegation is not confined to Ms Dye herself. It extends to her mother. In her evidence in chief, in answer to Ms Dye’s counsel, Mrs Dye said that between Ms Dye’s return from New Zealand on 23 June 2006 and seeing Mr Carroll on about 28 or 29 June 2006, Ms Dye told her about some engagements with Mr Patterson. One of them, she said, concerned 9 June 2006. Mrs Dye said:
She told me on the day of the 9th, she told me that she – that Mr Patterson had asked her out for drinks and it was going to be just after work drinks.
456 I asked Mrs Dye how she remembered the date. She said there was a reason although she couldn’t bring it to mind at that moment. Then she said that she remembered it because the following work day (which was Tuesday 13 June 2006) Mr Patterson invited Ms Dye to New Zealand and Ms Dye was excited about it. Mrs Dye confirmed that she was told something about 9 June 2006 between Ms Dye’s return from New Zealand and her seeing Mr Carroll. She then referred to Ms Dye being out with Mr Patterson and another gentleman who was telling “off jokes” (an allegation Ms Dye had made about Mr Phillipp), being walked home by Mr Patterson, Mr Patterson insisting on coming to the apartment, picking her up and throwing her on the bed.
457 The first point to make is that this is an allegation which was not made by Ms Dye in any written statement until years later. In addition, Ms Dye said in her evidence that she did not tell her mother about it at the time. Ms Dye’s evidence about that was clear and unqualified. Furthermore, Ms Dye’s evidence that she did not tell her mother was given in re-examination to her own counsel after an adjournment to permit them to confer. Ms Dye said she told her mother she was going out to drinks on 9 June 2006 but did not tell her what happened. She also said that she did not tell her mother about events which she alleged on 13 June 2006, to which I will come in a short while, however Mrs Dye also professed to know
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about those matters by the last week in June 2006. The same thing happened with respect to an allegation concerning 13 April 2007.
458 Mrs Dye’s evidence was that she was told by her daughter that she was annoyed on 9 June 2006 because the time for drinks had been changed. I have already referred to the fact that Ms Dye’s own evidence to this effect cannot be accepted. Mrs Dye was reminded in cross-examination that she said in her evidence in chief that she was told in late June 2006 that on 9 June 2006 Mr Patterson picked Ms Dye up and threw her on a bed. I have already pointed out that until 7 January 2009 Ms Dye’s own account consistently was that anything of this kind occurred on 1 June 2006. Mrs Dye was insistent that the event about which she was told occurred when Ms Dye went out with both Mr Patterson and Mr Phillipp. That cannot be true. Mrs Dye cannot have been told that or anything like it in June 2006. Ms Dye’s own account of this incident, when it first began to be developed, was that it followed immediately after drinks at the Observatory Hotel, which themselves followed dinner at the Chinese restaurant on 1 June 2006. That account was repeated in the 2 January 2009 email, the very day upon which Mrs Dye said she was given the actual detail (as opposed to the occurrence) of the supposed sexual assault against her daughter. It was not until 7 January 2009 that the context in which this alleged assault supposedly occurred was completely rewritten. It was not until then, for the first time, that it became associated with drinks with Mr Patterson and Mr Phillipp. Even then, as I have already explained, I am not convinced that drinks with Mr Patterson and Mr Phillipp at the CBD Hotel occurred on 9 June 2006, rather than in September 2006. There is no other objective evidence to suggest that they did.
459 It was Mrs Dye’s practice to proof read her daughter’s statements. She accepted in her cross examination that she and Ms Dye worked on documents together. Confronted in cross examination with a document which she had proof read which contained the earlier account of Mr Patterson’s assault on 1 June 2006 (with a different date and quite different surrounding circumstances) Mrs Dye was asked to explain how she could have allowed a mistake, about a date which she knew to be wrong from her own knowledge, to be committed. She retracted, saying she did not recall dates, but just events, and then later dates were put to the events. She then accepted that what she said in her evidence the day before (to which I referred a short while ago) depended entirely on what Ms Dye said about those dates. Then Mrs Dye said that everything she had been told she was told in June 2006 but she wasn’t sure of the dates. She did not know the dates. That is certainly not the position
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that Mrs Dye attempted to portray in her evidence in chief when she said she could locate the date of 9 June 2006 firmly in time because it was the working day before Ms Dye excitedly received the news that she was going to New Zealand. It is inevitable that I would regard Mrs Dye’s earlier evidence as untrue.
460 Mrs Dye also ventured another attempted corroboration of her daughter’s allegations. Mrs Dye said that on 2 January 2009 her daughter took her for a coffee and told her the actual details of the sexual assault on her. Mrs Dye asserted that Ms Dye said then that it had occurred on 9 June 2006. The difficulty for this version of events is that on 2 January 2009 Ms Dye emailed Mr Rochfort her then current version of this event which placed the events on 1 June 2006. It was not until five days later that Ms Dye relocated (and rewrote) this event and placed it at 9 June 2006.
461 Mrs Dye’s evidence gives no support of any kind to the allegation that Mr Patterson sexually assaulted Ms Dye on 9 June 2006. From beginning to end these matters have been fabricated to suit Ms Dye’s purpose. Her mother is complicit in the falsehood, I regret to say. I do not believe the evidence of either Ms Dye or her mother.
12 June 2006 (watching the World Cup Soccer match)
462 There is no allegation of sexual harassment, or sexual assault, by either Mr Patterson or Mr Blomfield on this date, but it is an important one. Late this evening, Ms Dye accompanied Mr Patterson and Mr Phillipp to watch the World Cup soccer match between Australia and Japan, at the end of a long weekend. The soccer match is not mentioned at all in the workers compensation statement. The 2 January 2008 HREOC statement makes no reference to a soccer match either. Nor does the February 2008 HREOC addendum. It is not mentioned at all in the April 2008 published allegations.
463 The 2 January 2009 email dealt only with allegations concerning 1 and 2 June 2006 and makes no mention of the soccer match. The 7 January 2009 email does refer to the soccer match. It refers to Ms Dye being invited on Monday 5 June 2006 to watch the game on Sunday (in fact the soccer game was on Monday). The account which is given concerning the soccer game is that Ms Dye felt she could not withdraw, despite being sexually assaulted on 9 June 2006. Ms Dye said she therefore went as planned and the match was watched virtually in silence. Ms Dye also said that at the end of the game Mr Patterson asked Mr
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Phillipp to wait and walked Ms Dye home. When they reached her apartment he left without attempting to come up. In this version, Ms Dye then referred to events on Monday 12 June 2006 including a suggestion that she received and replied to a text message from Mr Phillipp. That could not have happened because the soccer match was not until that evening, but no more time need be spent on that aspect. In the February 2009 police statement, Ms Dye repeated the substance of what was said in the 7 January 2009 email.
464 Events at the soccer game did not transpire as Ms Dye suggested in these later statements. I accept Mr Patterson’s account of what happened on the evening of the soccer match. It is adequately supported by telephone records and by the objective record of the passage of the soccer game itself and the events within it. Mr Patterson is a soccer enthusiast and could readily bring to mind, in the witness box, precise details. According to Mr Patterson, late in the game Australia was trailing 0-1 to Japan. It was necessary for Australia to win the game in order to progress in the World Cup. There appeared to be no prospect that Australia would be able to draw level and win the game. The next day was a work day. It was already well after midnight, the game having commenced at 11 pm. Mr Patterson and Ms Dye left and drove to Ms Dye’s apartment. On the short trip from the Orient Hotel at The Rocks to her apartment in Kent Street, Australia scored. Mr Patterson asked Ms Dye if he could come up to her apartment and watch the last 10 minutes. She agreed happily. They went together to Ms Dye’s apartment and watched the last 10 minutes of the game. Australia scored twice in the dying moments of the game to win 3:1. Mr Patterson left, having been in Ms Dye’s apartment for 10-15 minutes or so. He rang Ms Dye, after leaving the apartment, at 12.57 am to thank her for a “great night” and a pleasant evening.
465 I accept Mr Patterson’s account of these matters. I reject Ms Dye’s evidence that Mr Patterson walked her home and left her outside her apartment. Ms Dye gave no evidence about the specific detail of this evening in chief beyond saying that she went to the soccer game and that she only attended because Mr Patterson expected her to go. In cross- examination she denied that Mr Patterson came up to her apartment. I reject her denials that Mr Patterson came to her apartment that evening.
466 It is inconceivable that Ms Dye would have allowed Mr Patterson to come into her apartment on this evening if she had been violently sexually assaulted three nights before. That is one, but not the only, reason why her account concerning 9 June 2006 cannot be
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accepted. The truth of the matter is, I am satisfied, that Mr Patterson and Ms Dye during this period enjoyed a very friendly and sociable relationship which was not marred as she suggested by constant propositions for sex from him nor by any form of assault or other unacceptable behaviour whether amounting to sexual harassment or not. Shortly after this they had a disagreement in New Zealand which I have already discussed, but it was represented by things that did not involve any form of sexual advance.
467 Ms Dye alleged in the proceedings that a further assault occurred on 13 June 2006, effectively the very evening that Mr Patterson went to her apartment and watched the end of the soccer game a little before 1 am in the morning. I will explain next why I reject that account also.
13 June 2006 (Ms Dye’s apartment)
468 In neither the workers compensation statement nor in the 2 January 2008 HREOC statement did Ms Dye allege that she had been assaulted by Mr Patterson on 13 June 2006. However, in the February 2008 HREOC addendum, Ms Dye added a large number of further entries under this date. Many of them clearly related to events which did not take place on 13 June 2006. However, towards the end of those entries, Ms Dye asserted the following:
• On one occasion, Angus suggested we went for a quick “Friday night drink” to finish the conversation about the growth strategy for Business Banking. I agreed and we discussed business for the majority of the evening. • When Angus suggested that he walked me home due to my being intoxicated, I agreed because it was safer than walking home alone. • On the way home, Angus said he liked walking around in the city with me at night, and tried to kiss and cuddle in the alleys. • I was always having to tell him to “get off me” with a tone of revolt. • When we arrived at my apartment Angus insisted that he come upstairs for “Chai Tea”. • Although I said no more than ten times, Angus would not allow me to go inside and when I attempted to, he pushed his way past me, promising to only come up for one cup of tea. • Again, once in the apartment, Angus attempted to force himself upon me so I asked him to leave immediately and he left.
469 Parts of these assertions appear to have been incorporated in a later allegation made about Mr Patterson concerning 16 June 2006. The final allegation was later confirmed as one concerning 13 June 2006 but put into a context which differed from the context given in this document.
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470 In the February 2008 HREOC addendum no specific allegation was made about Mr Patterson concerning 16 June 2006. However, in the April 2008 published allegations there were a number of entries for 16 June 2006. That is one of the things which serves to indicate that it was a document later in time, and further developed, than merely being a combination of the 2 January 2008 HREOC statement and the February 2008 HREOC addendum. In the April 2008 published allegations Ms Dye referred to a meeting with Mr Blomfield at 4.30 pm on 16 June 2006. That is a meeting which actually did occur. She concluded her entry for that day by referring to a telephone call from Mr Patterson and said: “Angus then invited me to go out for a drink with him that evening however I declined.” I shall discuss the further detail concerning 16 June 2006 a little later, but this assertion that there were no drinks that evening should be noted.
471 In the 7 January 2009 email, shortly after mediation of the Federal Court proceedings had failed, a radically different position was taken with respect to 13 June 2006 from that taken earlier.
472 13 June 2006 is the day Ms Dye was asked if she would like to go to New Zealand. This happened only hours after Mr Patterson watched the final moments of the World Cup soccer match in the friendly environment of Ms Dye’s apartment at the end of a very pleasant evening. On Ms Dye’s evidence, by contrast, it was the next working day after a violent and serious sexual assault on her. Nevertheless, she was, according to her and her mother, “excited” about the opportunity. Ms Dye’s evidence was that she then attempted to inform Mr Patterson during the day that she would not have sex with him in New Zealand, but he would not discuss it at work.
473 In the 7 January 2009 email, Ms Dye gave a long account about how she and Mr Patterson had a discussion after work in the library of her apartment building in which she told Mr Patterson she would not have an affair with him and would not sleep with him. Mr Patterson reassured her, she said, and promised that he would stop propositioning her for sex. He suggested they go upstairs for a coffee. Ms Dye agreed. As soon as they arrived in her apartment she alleged that Mr Patterson again attempted to initiate sex. He picked her up and threw her over his shoulder. She was forced to hold on to the doorframe and to struggle to get free. She was screaming and scared and distressed. When Mr Patterson saw she was crying he left. This account also found its way into the February 2009 police statement. It
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represents the second serious assault in as many working days. On each occasion, Mr Patterson deceived her about his intentions. On each occasion, he used physical force to overpower her. On each occasion, she had to fight him off.
474 This account, and the actual events of the previous evening after the soccer match, do not exist in the same universe. Furthermore, it is inconceivable that Ms Dye would still go to New Zealand with Mr Patterson if this had occurred and if he had immediately repudiated a promise to her in the library minutes before not to attempt to have sex with her. It is equally inconceivable that she would have allowed him to go to her apartment if the sexual assault on 9 June 2006 had occurred four days earlier. However that sexual assault did not occur. Neither did this assault. I am satisfied that this is another concoction which deserves immediate rejection.
15 June 2006 (Le Chifley and afterwards)
475 The next event of significance was the occasion, just two days later, of drinks to celebrate Mr Blomfield’s appointment on Thursday 15 June 2006 at the bar in Sydney called Le Chifley. By this time, if Ms Dye is to be believed, she had been twice within the previous six days subjected to violent assaults by Mr Patterson about which she said nothing, although she had no hesitation a short time later making an allegation to Mr Blomfield that Mr Patterson propositioned her in New Zealand.
476 Ms Dye was invited to this function by Mr Selvarajah. I am satisfied that she was not invited, as she was prone to suggest, because Mr Blomfield wished her to be invited or that he directed Mr Selvarajah to invite her. Mr Blomfield left the organisation of the function to Mr Selvarajah. He was informed by Mr Selvarajah on 15 June 2006 that Mr Selvarajah had invited Ms Dye when Mr Blomfield told Mr Selvarajah about a congratulatory email which he had just received from her. Ms Dye’s allegations about Mr Blomfield’s behaviour at this event have changed over time. I do not propose to deal with all the allegations, much less all the different versions of events which she has given from time to time. There are some central features which stand out.
477 At the event itself at Le Chifley, Ms Dye’s evidence was that Mr Blomfield monopolised her attention, that they were seated side by side for a period of some hours, that at one point he had pulled up his shirt and pulled down his trousers sufficiently to show her a
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tattoo below his beltline and that his behaviour was so sexually aggressive that at one point she rang her mother to remark upon it. I reject each of those assertions. I am satisfied that they were knowingly false. Ms Dye also alleged that during the evening Mr Blomfield was “dirty dancing” with at least three other women and that at one point in time a female work colleague reached from behind between his legs and grasped him in the region of his testicles. Such, she seemed to wish to suggest, was the nature of the evening. I reject these assertions also. They also were falsely made. Nothing of that kind happened, either dirty dancing or somebody grasping Mr Blomfield in the region of his testicles.
478 Ms Dye asserted that late in the evening (early the next morning) Mr Blomfield walked her home. I accept that he did. I do not accept her account of the conversation which she said then ensued. I do not accept her allegations that Mr Blomfield attempted to kiss her, that he by word or deed, whether implicitly or not, conveyed any suggestion to her that he wished to have sexual relations with her on that evening or at any other time. I accept Mr Blomfield’s evidence to the effect that he walked Ms Dye home to attempt to dissuade her from pursuing the idea of some relationship with him, a purpose which she had made evident to him and to others who were present on that evening.
479 Ms Dye gave repeated evidence that at the function Mr Blomfield showed her a tattoo by pulling out his shirt and pulling down on his belt and trousers to expose it to her. She said at one point in her evidence that it was on his “love handles”. When asked to identify more precisely, and descriptively, where it was located, her evidence became vague and ultimately evasive. In the end, a variety of possible locations were suggested, although in the past Ms Dye’s firm allegation has been that she was shown a tattoo on Mr Blomfield’s “backside”. At various places in her evidence Ms Dye also offered descriptions of that tattoo, or what it represented. Mr Blomfield does have a tattoo. Mr Blomfield has a number of them. It is not a particular secret, particularly to his male colleagues who might have seen them in a dressing room. He has tattoos on his left and right rib areas. He has a tattoo on his outer left thigh. He does not have a tattoo on his “backside”, on his buttocks, on his “love handles” or in any other place suggested by Ms Dye. The tattoo which he has on his outer thigh bears no resemblance to the tattoo described by Ms Dye in her evidence. It is not visible or able to be displayed in the way suggested by Ms Dye.
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480 The conclusion is inevitable that this piece of evidence, which no doubt was intended to be damaging to Mr Blomfield, was fabricated in all its essential elements and then deliberately falsely advanced by Ms Dye. She may have learnt that Mr Blomfield had a tattoo. So much was never denied by him. I am satisfied he did not show it to her. If he had done so, she would not have mistaken its character or forgotten its appearance.
481 The first recorded occasion where this allegation was made, which is in evidence in the proceedings, was in the workers compensation statement where Ms Dye said that Mr Blomfield “showed me the tattoo on his backside”. The allegation was repeated in the same terms in the 2 January 2008 HREOC statement and in the timeline. Ms Dye’s first evidence about this at the trial was accompanied by reference to a discussion about whether Mr Blomfield’s name indicated a Jewish heritage. Mr Blomfield, according to Ms Dye, said that it did not. Then she said the following:
… Then he nudged me and then made a motion to suggest that he was telling me a secret, and I should be quiet about it. And then he put his – and then he pushed out his chair a little bit and put his thumb into his belt and pulled his belt down, and pulled his shirt up, and flashed a tattoo.
And did you consider his conduct at that stage to be provocative or sexually suggestive in some way?--- Well, yes, I considered it to be lewd.
And what did he say?---He said, “My mother is catholic” and that it was either his name or his father’s name, or the family name in Hebrew.
482 Later in her evidence in chief, Ms Dye said (indicating with her hand) that the tattoo was “on his love handles”. She confirmed that she pointed to the region of the lower back on one side. Attempts to get greater clarity met immediate resistance and lack of cooperation from Ms Dye. The alternatives which Ms Dye was, at that stage asked to resolve (but did not), were whether she had indicated an area slightly above the waist or an area roughly at waist level. The position got no better in cross examination. Ms Dye was reminded of the evidence she gave about the matter in chief and where she had identified the tattoo to be. She was reminded of earlier written statements where she had identified the tattoo as being on Mr Blomfield’s backside. She asserted that “his backside” was where she had indicated in the witness box in her evidence in chief. She then said that what she meant by the word “backside” was on his “love handles” at about belt level. Shortly thereafter in her cross- examination Ms Dye said she did not know what the word “backside” meant. A little later she said she could not remember where the tattoo was located but just what it was. She was
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asked to describe the point to which he pulled down his pants. She said she did not know. This evidence was a departure from previous versions.
483 In the February 2008 HREOC addendum, Ms Dye gave a version of events to the effect that Mr Blomfield “pulled his shirt out from his pants and pulled his pants down past his hips and part of the way down his backside, revealing tattoo on his backside”. In the February 2008 HREOC addendum and in the April 2008 published allegations, Ms Dye described the tattoo as a soft, circular symbol. She said in her cross examination that the symbol was language, although not English words.
484 In evidence given to the Supreme Court in 2009 in the Blomfield proceedings, Ms Dye said that Mr Blomfield lifted his shirt and lowered down his pants at the side to expose a large tattoo which was on the side of his lower back. Each written version of this event had located the alleged tattoo on Mr Blomfield’s “backside”. Ms Dye explained that she had made the change for the purpose of her evidence in the Supreme Court because a solicitor for the bank had said at the HREOC conciliation conference that the tattoo was a bit higher (than the “backside”). Then she said (in the present proceedings) that “love handles” and “buttocks” were the same on a man carrying weight. She agreed that it would be necessary to be prodigiously fat and said that Mr Blomfield was quite fat. A little earlier in her evidence, she had suggested that he was able to pull his pants down a little without undoing his belt because he had lost weight and his clothes were sloppy. Then Ms Dye complained that she was being harassed in cross-examination, protesting: “what difference does it make what body part it is?” Ms Dye was not being harassed. Senior Counsel for the respondents conducted himself with scrupulous fairness and courtesy to Ms Dye throughout the whole of the trial. A little later, Ms Dye embellished her evidence by insisting that not only had Mr Blomfield shown the tattoo to her but he did it in front of everybody at the event. She made that assertion more than once. No other witness confirmed it. The suggestion was consistently denied by other witnesses, as well as by Mr Blomfield.
485 Mr Blomfield was subjected to the indignity (although with his consent) of showing me the tattoo. It is, as he said in his own evidence, located on his outer left thigh. It is quite distinctive. A record was made on the transcript of its appearance but it is not necessary to repeat it here. It has a particular and personal meaning to him. It bears no resemblance to the description given by Ms Dye. It is not located on his backside or on any other part of his
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body identified by Ms Dye. It is not possible to see any part of it if the shirt is lifted and the belt and trousers pulled on. It would not be possible to show any part of it without the trousers being lowered to the point of partial undress. This allegation and, ultimately, the evidence given about it on affirmation, was egregiously false. That is one, but not the only, reason why ultimately I came to regard Ms Dye’s credit as being so slight that I would not accept her evidence, where contested, unless confirmed by other material, preferably contemporaneous. It is one, but not the only, reason why I do not accept her assertions about Mr Blomfield’s conduct later in the evening after they left Le Chifley.
486 Mrs Dye’s evidence about the evening at Le Chifley also included the assertion that she was told by her daughter that Mr Blomfield “exposed a dirty big tattoo on his bum”.
487 A little later, Mrs Dye confirmed her supposed understanding of the general area of Mr Blomfield’s body being spoken of. She said:
“He exposed a dirty big tatt or a dirty big tattoo or a dirty big oval tattoo on his bum or backside,” that was the gist of what she said to me.
So was the word used “bum” or “backside,” the word used by your daughter when she spoke to you?---I can’t recall the exact word, it was “bum”, “backside” or it could have been even ---
Well, in your affidavit you used the word “butt”?---Well, it could have “bum”, “backside”, “butt”, “arse”, all I can remember is it was that area.
488 This evidence compounds the falsehood which, I am satisfied, is a falsehood in which Ms Dye and her mother were complicit.
489 Ms Dye’s assertions that Mr Blomfield, or anybody else, was dirty dancing were explicitly rejected by witness after witness. So was the assertion that one of Mr Blomfield’s female work colleagues had grasped him in the area of his testicles. That was rejected by Mr Blomfield and by the lady in question who was a dignified and composed woman in her middle age who was entitled to feel affronted that the suggestion had even been made. The same woman counselled Mr Blomfield on the evening in question that he should be careful about Ms Dye who, to her observation, was “trouble”. A number of witnesses confirmed that far from Mr Blomfield monopolising Ms Dye’s time, she followed him around the room, as he circulated to speak with people who were attending his celebratory drinks, and positioned herself by his side at every opportunity.
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490 The assertions made by Ms Dye of inappropriate behaviour towards her at his celebratory drinks were contained in the “timeline” sent to Mr Carroll on 26 October 2007. They were investigated by Mr Matthews. Mr Matthews concluded that they were without foundation. He recorded, amongst other things, that with respect to the function on 15 June 2006 the recollections of several witnesses supported Mr Blomfield’s position that it was Ms Dye who made unwelcome advances. He said:
Seven witnesses noted incidents of questionable behaviour by Vivienne Dye, four of whom specifically mentioned her predatory behaviour at the 15 June 2006 function
491 Counsel for Ms Dye took great umbrage on her behalf at the suggestion that her behaviour had been predatory. That is Mr Matthews’ word. Mr Matthews’ conclusion was within the legitimate range of views available to him upon the basis of the statements which he took. It was accurate to suggest that a number of those statements suggested that Ms Dye had pursued Mr Blomfield throughout the evening. Two women warned Mr Blomfield explicitly about Ms Dye’s behaviour.
492 Both Ms Dye and her mother volunteered that Ms Dye became sufficiently concerned about Mr Blomfield’s behaviour that she rang her mother during the evening and registered her concern with her. That evidence was false also. It was false when given by Ms Dye and it was false when given by her mother. The telephone records show that the last conversation between them that evening occurred at a time which predated Mr Blomfield’s arrival at the function.
493 The evening of 15 June 2006 plays a central part in Ms Dye’s allegations against Mr Blomfield. The matters I have mentioned make it impossible to accept the allegations she made against him concerning any part of that evening. Ms Dye must make out each of her causes of action at least on the balance of probabilities. She is quite unable to do that so far as they depend upon any version of events given by her concerning 15 June 2006. The same conclusion, it will be seen, must be reached independently with respect to events on 8 August 2006. However, the damage to Ms Dye’s case, even at this point, is so serious that it would be an injustice to accept her word against that of Mr Blomfield. This was a critical aspect of her case where his evidence was wholly supported by other evidence and hers was shown to be completely inconsistent with the other available evidence.
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494 Ms Dye’s approach to Mr Blomfield on 26 June 2006 and her efforts to keep him informed of the outcome of her negotiations with Mr Patterson is another reason why her complaints and characterisation of the events on 15 June 2006 cannot be accepted. Within virtually one working week from the time of this function, when Ms Dye had attempted to spent most of the evening with Mr Blomfield, she approached him for a job. Bearing in mind that in the intervening period Ms Dye had been in New Zealand for three days, her approach occurred within only a matter of days. It was not necessary for Ms Dye to approach Mr Blomfield about any issue concerned with Mr Patterson. Mr Blomfield was in a different division. He had no supervisory responsibilities for Mr Patterson, Ms Dye or Ms Dye’s work. That she chose to approach Mr Blomfield, of all people, is a clear indication that Ms Dye’s view of Mr Blomfield was very different from the one she expressed after she decided he should be accused of sexual harassment. The approach to Mr Blomfield on 26 June 2006 was another in an increasingly lengthy series of approaches and meetings which had been largely arranged at Ms Dye’s initiative. Then, after the settlement with Mr Patterson on 30 June 2006, Ms Dye approached Mr Blomfield again with the document which she described in the proceedings as her “boundaries” for him. That was an inaccurate description of a document which had quite a different character. The document read as follows:
Michael 30 June 2006
• I’ve been strongly advised by Mick against telling Angus of your knowledge.
• Thank you very much for putting me on to Mick.
• Mick is now giving me all the guidance I need.
• I hope I will continue to have your support as my referee.
• I look up to you.
• I hope to one day work for you.
• Whether or not you value my contribution, I hope that you will accept my continued efforts to support your business.
• It’s the work I enjoy the most.
• For the record, I haven’t exaggerated this incident.
• My boundaries with Angus are my business, but since you expressed an interest in them, I was happy to share them with you.
• Thanks for helping me get my job back.
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495 Ms Dye wished to have Mr Blomfield’s continued support, she looked up to him, she wished to one day work for him and her efforts to support his business were “the work I enjoy the most”. Mr Blomfield, in his evidence, said he regarded this as a strange document. One thing is clear from it. Ms Dye’s feelings, after 15 June 2006, were not those alleged at the trial.
496 Less than one week later, in an email to Mr Patterson, Ms Dye gave Mr Blomfield as one of her referees for her performance review and asked him to set up an arrangement whereby she could work for Mr Blomfield for half a day once every two weeks. This would have ensured, perhaps she thought, regular contact with Mr Blomfield although it does not appear that any arrangement of this kind was put in place. None of these things are consistent with the suggestion that Ms Dye was discomforted in any way by Mr Blomfield’s behaviour on 15 June 2006.
497 Ms Dye’s evidence about events of 15 June 2006 must also be seen in the light of subsequent events at the Westin Hotel on 8 August 2006 which are yet to be discussed in detail. It was Ms Dye who had “the hots” for Mr Blomfield and not the reverse. That is consistent with Mr Blomfield’s evidence about events at Le Chifley and quite inconsistent with Ms Dye’s evidence about those matters. The fact of the matter is that Ms Dye was highly desirous of getting closer to Mr Blomfield, of working for him and, I am satisfied, of establishing a close personal (probably intimate) relationship with him. His rejection of her again on 8 August 2006 came as a great disappointment. It was reflected in a variety of ways and in various conversations. It was followed by a period of anxiety approaching depression. The change was evident to her family. She told others, including Mr Furlong, that she had gone into a decline after they had had their “adult conversation” in which they had decided “not to have an affair”. She also told Dr Parmegiani that after 8 August 2006 she went into a decline. Things might have seemed to have improved when Ms Dye was engaged to work in LBB but Ms Dye rapidly became upset by Mr Blomfield’s apparent lack of interest in her. She reacted to that in various ways including the voice message to him on 22 November 2006, ostentatiously turning away from him on 1 December 2006 and her text message on 7 December 2006. These are all indications that Ms Dye was bitterly disappointed and upset that she and Mr Blomfield were not moving closer and closer together as she desired. However, she appeared to rationalise those matters as being the product of the inter- positioning of Mr Selvarajah between her and a direct contact with Mr Blomfield. Ms Dye’s
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suggested solution for this was that Mr Blomfield should become her manager. She persisted in this suggestion, and endeavoured to achieve it, with her review to Mr Mason.
498 Even when that failed she continued to seek Mr Blomfield’s assistance. She had sought it in the meeting of 15 February 2007 when she gave Mr Blomfield the list of things which she wanted, which I set out earlier and which included requests that he be nice to her and give her a hug. She sought Mr Blomfield’s assistance in her text message of 9 April 2007, which Mr Blomfield found disturbing and to which he did not respond. She sought his assistance in her telephone call on 13 April 2007 when she asked him to remove Mr Selvarajah’s file notes from her official record and he declined. That was the last time that they spoke. Thereafter, but only at that point, Ms Dye commenced to make allegations against Mr Blomfield of some form of wrongful conduct. She mentioned something of that kind for the first time on 8 May 2007 in a conversation with Ms Adams after her workers compensation claim had been lodged. She said something to that effect in the workers compensation statement itself which was constructed at about that time. For the first time she commenced to complain about the events of 15 June 2006. For the first time she commenced to suggest that something more was involved on 8 August 2006 than an “adult conversation” in which she and Mr Blomfield had resolved their personal issues between them. However, it was not until Ms Dye saw Mr Blomfield’s response to those suggestions that she turned her full fury against him. She then decided that she would “destroy him and his family”. The other aspect to Ms Dye’s angry reaction was that she saw that Mr Blomfield had published to the bank the suggestion that she was an opportunistic, underperforming employee and that it was she, Ms Dye, who had been pursuing Mr Blomfield and that other people had remarked upon her conduct. Ms Dye’s self image seems very important to her. I have no doubt that she would have been infuriated to read what Mr Blomfield had said. I have no difficulty drawing an inference that it was her reaction to Mr Blomfield’s statement, as well as his unequivocal rejection of her, which led to the statement she made to Mr Patterson, that she would “destroy him and his family”. Ms Dye’s account of events on 15 June 2006 represents one aspect of that intent.
16 June 2006 (Hyatt Hotel and afterwards )
499 Ms Dye’s allegations against Mr Patterson concerning 16 June 2006 (less than 24 hours later) which were made for the first time in the February 2009 police statement also
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merit immediate rejection. In this case there is some fatal contemporaneous material that makes it clear beyond argument that Ms Dye fabricated the allegation. I pointed out earlier that in her April 2008 published allegations Ms Dye asserted that Mr Patterson invited her for a drink on Friday, 16 June 2006, after she had left a meeting with Mr Blomfield, but that she declined. In the statement which she made to the NSW Police (but not in any earlier statement) Ms Dye said for the first time that something very different happened after Mr Blomfield’s meeting on 16 June 2006. She gave an account of text message and phone communications with Mr Patterson wherein Mr Patterson was angry and demanded that she have a drink with him. She gave this same account in her evidence in the proceedings. The evidence she gave about that aspect was not supported by the telephone records. Far from Mr Patterson badgering and interrupting her, as she claimed, Ms Dye contacted him as soon as the meeting with Mr Blomfield was over.
500 In the February 2009 police statement, far from saying she declined Mr Patterson’s invitation for a drink as she had said earlier, Ms Dye asserted that Mr Patterson insisted on going to the Hyatt Hotel for a drink and she agreed. After a drink he insisted on walking her home. It was raining heavily and they walked first to the office to get Mr Patterson’s car. At one point Mr Patterson said: “It’s really nice walking around the city with you at night Ms Dye. Why don’t we go into the alley for a kiss and a cuddle?” This is a suggestion that was previously included in the February 2008 HREOC addendum, for the first time, under the date 13 June 2006. The difference is that in the account in that document Ms Dye had she and Mr Patterson talking business for most of the evening and continuing to drink to the point where she became intoxicated. In the February 2009 police statement, Ms Dye said they had only one drink. The police statement went on to allege that once in the office in a lift Mr Patterson assaulted her again by pushing her back aggressively against the wall with both his hands so that she was forced back abruptly and hit her head on the back of the elevator, by then pressing his body against her and by kissing her. Ms Dye gave substantially the same account in her evidence in the present proceedings.
501 The account was inextricably linked in this latest version as a sequel to the meeting with Mr Blomfield. That can mean only that the allegations related to 16 June 2006. The meeting with Mr Blomfield did occur on 16 June 2006 at 4.30 pm. The other element of the account, which was an integral part of it in this latest version, was that it was teeming rain on that night. In her oral evidence, Ms Dye went to great lengths to explain that it was that fact,
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coupled with the fact they only had one umbrella between them, that necessitated her walking with Mr Patterson to his office to accept a lift home rather than go straight to her apartment, notwithstanding the earlier assaults which she had by this time alleged in her evidence. Bureau of Meteorology records were tendered. It did not rain in Sydney on 16 June 2006, or for days on either side of that date. This was another fabrication. There is no possibility, as Ms Dye attempted to suggest faintly at one point, that the date could have been mistaken for another Friday at about that time. The following Friday Ms Dye came back from New Zealand with Mr Patterson. They certainly did not go out for a drink that night. The Friday after that was the day on which she resolved matters by agreement with Mr Patterson after the New Zealand trip. Nothing of this kind happened on that evening. The Friday before 16 June 2006 was 9 June 2006. Ms Dye’s account of sexual assault on that night left no room for this allegation. The Friday before that was Friday, 2 June 2006, only one day after the day Ms Dye had abandoned as the date upon which she was sexually assaulted by Mr Patterson.
502 However, in a sense there is no need to consider the possibility of any other date so far as this allegation is concerned. As I indicated before, in the April 2008 published allegations Ms Dye added a reference to 16 June 2006 in which she asserted that Mr Patterson rang her after her meeting with Mr Blomfield and asked her to go out for a drink, but she declined. This was a factual statement additional to the version of events put before HREOC. It was an embellishment to a settled account which involved no accusation about 16 June 2006, and excluded that date as one on which any sexual harassment had occurred. When Ms Dye crafted the new allegations, for the 7 January 2009 email, about digital and anal vaginal penetration on 9 June 2006 and a further assault on 13 June 2006, she still did not include the new, and quite different, allegations about 16 June 2006, which contradicted what she said in the April 2008 published allegations. The new allegations, and the allegations of assault on 13 April 2007, appeared first in the 2009 police statement, about 6 weeks later. This 2009 version of events, progressively revealed in January and February 2009, seems to have been something of a work in progress in which a completely different story was being written.
503 The allegations about 16 June 2006 were tied, as I have said, to two indispensible accompanying features. One (that it followed the meeting with Mr Blomfield) leaves no room for a date other than 16 June 2006. The other (the teeming rain) indicates clearly that
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the allegation was false. This is an example where there is indisputable proof of an outright falsehood. That falsehood was designed and advanced after proceedings in this Court had been commenced. That probably would have been sufficient to cast considerable doubt over every other allegation which depended on acceptance of Ms Dye’s testimony, although, as by now will be apparent, there are many independent reasons why each of the other allegations must be rejected.
22 June 2006 (Auckland, New Zealand)
504 In her evidence in the present case, the only suggestion by Ms Dye that Mr Patterson sexually harassed her in New Zealand was the contention that at dinner on 22 June 2006 he asked: “Have you ever been to Tuscany?”, which was, Ms Dye asserted, a sexual proposition. I have found that it was not.
505 At no time in any of her earlier written statements did Ms Dye identify any other circumstance that would constitute sexual harassment by Mr Patterson in New Zealand.
506 The events in New Zealand, and the fact that Ms Dye went to New Zealand at all, have another significance. On the evidence which Ms Dye gave in the present proceedings, she went with Mr Patterson to New Zealand in circumstances where: he had violently sexually assaulted her on 9 June 2006, less than two weeks earlier; he had assaulted her again four days later, at the same time supposedly immediately repudiating his assurance to leave her in peace; and he assaulted her for a third time three days after that, at the end of the working week immediately before the New Zealand trip. I do not believe that any of those things happened. I have explained why I have reached those conclusions. In addition, I do not accept that Ms Dye would have gone meekly and mutely to New Zealand if anything like even one of those events had occurred. Ms Dye did not strike me as a young woman who would refrain from asserting herself, and insisting on her rights, if at all necessary. Furthermore, events in New Zealand themselves are consistent only with the position illustrated by events after the soccer match. In truth, at this time, Ms Dye and Mr Patterson were normally very comfortable in each others presence. On Wednesday 21 June 2006, I am satisfied, they dined together amicably at an expensive restaurant. They listened to music together, physically close, in the privacy of Ms Dye’s room afterwards. On Thursday 22 June 2006, the normal ease of their social interaction was marred by a disagreement but this event, even on Ms Dye’s own account of it, is only reconcilable with the easy relationship I am
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satisfied they otherwise had. The disagreement, I am satisfied, had nothing to do with a sexual proposition of any kind, was not preceded in any sense by earlier sexual harassment or assault and did not itself represent any form of sexual harassment.
507 I earlier set out the terms of the agreement, which was reached between Ms Dye and Mr Patterson, of 30 June 2006. The terms of that agreement were drafted by Ms Dye. I am satisfied that it sufficiently disclosed the nature of the “altercation” between them to exclude the possibility that Mr Patterson had propositioned her. I am not satisfied that Mr Patterson threatened her position in any way. I have no doubt that Mr Patterson regretted his remark, whatever it was. That issue was comprehensively settled on 30 June 2006. It had no further life left in it. It should have been allowed to rest peacefully where it was. It had no place in the present proceedings and the complaints which were made about it were without any substance.
12 July 2006 (encounter with Mr Blomfield in a lift)
508 An element, but only a minor one in comparison to the others, of Ms Dye’s allegations of sexual harassment by Mr Blomfield was that on 12 July 2006 he stood so close to her in a lift in the office building that he was pressed against her side and he took her hand in which she was holding a new telephone, turned it towards him and made some comment about it. Seen out of the surrounding context which Ms Dye desired to give such an incident it would have no significance. I do not accept the surrounding context which she has suggested, namely of Mr Blomfield’s ardent desire for a more personal relationship than she was prepared to accept. In any event, I am not prepared to accept Ms Dye’s evidence about this issue either. Mr Blomfield denied it. I would not accept Ms Dye’s evidence about a contentious matter, much less her characterisation of conduct as a form of sexual harassment, without some form of corroboration. In light of the findings that I have already made, and the matter that is yet to be discussed with respect to 8 August 2006, it is improbable that anything of the kind alleged by Ms Dye in fact occurred on 12 July 2006 and no more need be said about it.
8 August 2006 (Westin Hotel and afterwards)
509 Ms Dye and Mr Blomfield exchanged text messages on Saturday 5 August 2006 in the city. I have earlier set out the substance of their communications. Mr Blomfield found
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Ms Dye’s message, in response to his, highly flirtatious. On his evidence, he became concerned that he had not fully dealt with the issues which had earlier arisen and which had manifested most clearly on the evening of 15 June 2006. He decided, therefore, to speak to Ms Dye about it but again in a social rather than a formal or work setting. Monday 7 August 2006 was a bank holiday. Mr Blomfield therefore took the opportunity to ask Ms Dye if she would care to join him and some other colleagues for a drink after work at the Westin Hotel on Tuesday 8 August 2006. Ms Dye agreed. Ms Dye’s version of events in relation to that evening is substantially unacceptable. It is one which has changed backwards and forwards in some respects over time.
510 One allegation Ms Dye has made is that while they were seated at a table Mr Blomfield either rubbed her leg, touched her leg or placed his foot on a stool between hers, in response to which she grimaced with disapproval and moved her seat back. Photographs of the table and stools were in evidence. None of those things could have happened otherwise than in full view of the others who were there. Whatever was going on (if anything was) would have been quite obvious to them. Mr Tanner was present. He denied that anything of this kind happened in his evidence in chief. He was not cross examined about his denial. Mr Blomfield accepted that Ms Dye’s leg contacted his. He said that he then moved his leg away.
511 In her workers compensation statement Ms Dye said of this incident:
• While he was conversing with the female General Manger, Michael rubbed my leg with his leg three times during the course of the evening. The first two times I moved my leg away from his immediately. The third time Michael rubbed my leg with his, he did it so deliberately, that I was afraid he’s torn my very expensive Wolford hosiery. • I moved back in my seat so that it was obvious I was moving my legs away from his, and he apologised to me, inferring that it had been an accident. • I felt uncomfortable and embarrassed to be in the situation.
512 Then in her April 2008 published allegations Ms Dye said:
• While he was conversing with the female General Manger, Michael rubbed my leg with his leg three times during the course of the evening. The first two times I moved my leg away from his immediately. The third time Michael rubbed my leg with his, he did it so deliberately, that I was afraid he’d torn my stockings. • I moved back in my seat so that it was obvious I was moving my legs away from his, and he apologised to me, inferring that it had been an accident, in front of the other two people.
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• I felt uncomfortable and embarrassed being in the situation.
513 The “female General Manager”, a colleague of Mr Blomfield’s, was interviewed by Mr Matthews, during his investigation in November 2007. In a document which went into evidence in Ms Dyes’s own case, Mr Matthews recorded Mr Blomfield’s female colleague said that at this occasion on 8 August 2006 Ms Dye was making overtures and “coming on” to Mr Blomfield. She advised Blomfield at the time to “shut it down”.
514 In another document which she advanced in connection with her ongoing attempt to get some form of workers compensation payment in June 2009 Ms Dye said:
While seated on a bar stool at this table, Blomfield placed his left leg so that it pressed against my right leg under the table and not in view of any other persons on at least three occasions. I regarded these actions as unwelcome sexual advances and, each time he did this, I moved my leg away immediately.
Blomfield readjusted his position on his chair so that he was facing me, and then inserted his right leg between both of my legs, rested his right foot on the foot-bar of my stool between my feet so that his calf was in contact with my calves and his feet were in contact with my feet.
I grimaced with disapproval at his conduct and immediately put my feet on the floor, shifted my weight off the stool and pushed my chair back. Blomfield retracted his leg and removed his foot from my footstool.
515 None of those allegations were true. Nothing of the kind happened, at least not at Mr Blomfield’s instigation.
516 In evidence in the Supreme Court given in September 2009 in the Blomfield proceedings, Ms Dye said that Mr Blomfield rested his leg against hers, but not in view of anybody and definitely did not rub it. In her evidence given in the present proceedings, Ms Dye said that the contact was accidental but then said there was rubbing, later said there was no rubbing and then said that her versions were all the same. Her version of events has changed in ways which in my view cannot be reconciled. This matter seems to me to be in the same category as the allegation about the tattoo. It is a concoction so far as it suggests that Mr Blomfield initiated any unwanted contact.
517 A major difficulty for Ms Dye’s version about anything which happened on this occasion, and for her position as a whole in the proceedings, is an exchange which she was obliged to concede actually did occur between her and Mr Blomfield while still at the hotel.
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Ms Dye first recorded a written version of this discussion in her workers compensation statement. It was repeated in the timeline and in the April 2008 published allegations.
518 In the timeline sent to Mr Carroll on 26 October 2007, Ms Dye stated that she asked Mr Blomfield directly at one point while they were alone at the bar: “Do you have the hots for me”. Mr Blomfield denied any feelings for her and he chastised her for asking the question. He then asked her if she had the hots for him. She responded, in substance, that she did. Ms Dye told her solicitor, Mr Henderson, the same thing in a conference with him on 12 November 2007. After Ms Dye had committed herself to this version in the timeline she was, in a sense, stuck with this assertion, which Mr Blomfield substantially confirmed. It is very destructive of her case in light of her continued protestations in the present proceedings that she had no interest in Mr Blomfield whatsoever. In Ms Dye’s evidence in chief in the present proceedings this exchange was not mentioned at all, but Ms Dye was reminded of it in her cross examination. Ms Dye’s response in cross examination was that Mr Blomfield was not man enough to acknowledge his feelings for her.
519 Mr Blomfield’s evidence was that at one point during the evening while he was at the bar ordering some drinks Ms Dye came and stood next to him and said “do you have the hots for me”. Mr Blomfield responded: “No I don’t. I can’t believe you asked me that question. Why, do you have the hots for me?” Ms Dye responded “yes”. Mr Blomfield said: “Well that’s something we’re going to have to talk about”. They returned to the others and the conversation continued for some time. When the evening came to an end, around 10 pm, Ms Dye said: “Aren’t you going to walk me home?” Mr Blomfield said he would but needed to get his keys. They went to his office, which was almost directly across the road, he got his keys and he walked her home. During the walk and afterwards Mr Blomfield attempted again to explain to Ms Dye that there was no possibility of a relationship between them. He was married, he had children, he was Catholic. They arrived outside her apartment and Ms Dye suggested continuing to talk. They went to a small park nearby called Observatory Park. Mr Blomfield attempted to explain to Ms Dye again 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. The conversation ended shortly afterwards.
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520 The objective evidence, I am satisfied, is that Ms Dye went into some form of decline after this. One suggestion is that she commenced to have suicidal thoughts. Her family noticed that she was anxious and seemingly depressed at about this time. She told Mr Furlong in April 2007 that something had happened in August 2006 and then she had a breakdown. She also told Dr Parmegiani, about the same time, that after 8 August 2006 she went into a decline.
521 There is no substance in any suggestion that Mr Blomfield sexually harassed Ms Dye on 8 August 2006. On the contrary, I am satisfied that he resisted her overtures, which were sufficiently demonstrated for at least one of the people with him to notice and advise him that something needed to be done. I am also satisfied that Ms Dye has told many untruths about the events on the evening in question. In this, as in many other matters, I am not prepared to accept her unsupported or uncorroborated assertions about anything which she alleged happened on that evening. So far as independent evidence is available it is decidedly against her version of events.
522 Mr Blomfield’s position concerning Ms Dye’s general behaviour on 15 June and 8 August 2006 was stated to others before he ever became aware that Ms Dye would make, or had made, suggestions about his conduct on those occasions of the kind made in the present proceedings, or of the kind made in her written allegations from late 2007 onwards, or even the allegations in mid 2007. First, Mr Blomfield immediately, and on each occasion, mentioned to Mr Selvarajah that he had spoken to Ms Dye in an endeavour to deflect her approaches to him. Mr Selvarajah confirmed that, on each occasion on the morning following the event, Mr Blomfield told him explicitly that he found it necessary to speak to Ms Dye.
523 Secondly, Mr Blomfield did so to Ms Chapman on 13 April 2007 after Ms Chapman received an anonymous email complaining about Mr Blomfield. An email from the same anonymous address was sent to Ms Dye on 3 April 2007 with the subject heading “MB” and no content. This occurred on the day after Mr Mason had a second meeting with Ms Dye which confirmed the findings of his investigation. Subsequently, the anonymous email was sent to Ms Chapman. At this time, Ms Chapman and Mr Blomfield had a meeting scheduled for 13 April 2007. They discussed the email at that meeting. During that discussion, Ms Chapman recorded, Mr Blomfield told her that on the evening of 15 June 2006 Ms Dye was
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“really flirtatious” with him but “he was clear with her not to do this”. Ms Chapman also recorded “[it] happened a second time. He walked her home and said to stop”. This was before Mr Blomfield could have any idea what Ms Dye would later allege. It was even before Ms Dye’s workers compensation statement, which he did not see in any event.
524 Apart from the allegation concerning 12 July 2006, which I rejected a little earlier, Ms Dye’s allegations to the effect that Mr Blomfield sexually harassed her depend on acceptance of her versions about what happened on 15 June 2006 and 8 August 2006. I am not prepared to accept those versions. I am quite satisfied that, as given in evidence by Ms Dye in the present case, they have no substance and, further, that the allegations are false.
525 The result is that there is no foundation for any relief arising from any suggested sexual harassment by Mr Blomfield.
13 April 2007 (Mr Patterson’s house)
526 In her February 2009 police statement, for the first time, Ms Dye alleged a further assault by Mr Patterson on 13 April 2007. There is no doubt that Ms Dye went to Mr Patterson’s house at Lane Cove on the evening of that day. She went with her mother. Mr Patterson, Ms Dye and Mrs Dye all agree on that. Ms Dye’s version in her police statement is that after about an hour she began to feel comfortable and indicated to her mother that if she wanted to she could leave. In their evidence in the proceedings, both Ms Dye and her mother agreed that they had pre-arranged that Mrs Dye would leave on Ms Dye giving her a certain signal. In the police statement, Ms Dye recounted that after she and Mr Patterson went outside so she could have a cigarette, and then came back inside, Mr Patterson grabbed her and turned her around and forced her into a room at the front of the house. He flung her onto a bed, grabbed her wrists and forced them above her head and lay on top of her and tried to kiss her. She began to cry. Mr Patterson desisted. There are many reasons why this account must also be rejected as false.
527 In her evidence in chief, Ms Dye made no mention of any kind of this alleged occurrence. In her cross examination, she committed herself to evidence that at least from September 2006 to September 2007 Mr Patterson conducted himself “conscionably”. In a letter dated 19 September 2007 she thanked him for being a “conscionable mentor”. In her cross examination, Ms Dye confirmed that assessment. She said Mr Patterson in that period
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had acted according to conscience and with honesty and with integrity. In the context where Ms Dye had made no suggestion to the contrary in her evidence in chief and no reference to going to Mr Patterson’s house on 13 April 2007 (much less being assaulted by him), no cross examination was directed to any of those issues or to her inviting Mr Patterson to her apartment on 4 May 2007. The decision on Ms Dye’s behalf to refrain from referring to events on 13 April 2007, which had been referred to in the February 2009 police statement, must be regarded as a conscious decision taken by Ms Dye and her legal advisers. Before the trial commenced, while it was in the interlocutory stages, an application had been made to amend the pleadings to refer to matters dealt with in the police statement and to refer to the police statement itself. That application was initially rejected but on appeal it was permitted. The proceedings went to trial on the basis of a fifth further amended statement of claim. Orders had been made that evidence was to be given orally. The fifth further amended statement of claim gave in support of conduct defined as the “Patterson Behaviour”, which was alleged to be unwelcome conduct of a sexual nature (and therefore sexual harassment), the following:
(y) Sexually assaulting the Applicant
PARTICULARS
(i) Particulars of the conduct are contained in the detailed ‘Statement of a Witness’ made by the Applicant to the New South Wales Police Force on 13 February 2009 (“the Police Statement”), a copy of which has been served on the First Respondent.
528 As has already been indicated the February 2009 police statement contained references to alleged assaults on 9 June 2006, 13 June 2006, 16 June 2006 and 13 April 2007. The decision not to refer to any incident on 13 April 2007 in Ms Dye’s evidence in chief must have been deliberate and calculated. In cross examination, Ms Dye confirmed that in her evidence at the trial the only suggestion of assault which she made against Mr Patterson was on three occasions, on 9, 13 and 16 June 2006. Those matters served to confine the allegations in her case in a way which excluded any event later than June 2006 concerning Mr Patterson.
529 During Ms Dye’s cross examination, an application was made to call a medical witness before her evidence concluded, to suit the convenience of that witness. The application was opposed upon the footing that the opinion of the medical witness depended,
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in part, on things Ms Dye had said about events on 13 April 2007 when she alleged, in the February 2009 police statement, that Mr Patterson had assaulted her for a fourth time. It was pointed out that no evidence in chief had been given about those matters, notwithstanding that they had been the subject of an application to amend the statement of claim which had been considered both by a single Judge and a Full Court. The circumstance that Ms Dye had given no evidence about this issue would inevitably be relevant to a consideration of the opinion of the medical witness. I ruled that, in the circumstances, Ms Dye’s evidence should be completed before any further evidence was taken. The following day Ms Dye’s cross examination concluded. An application was then made to re-open her evidence.
530 The position which arose was a very curious one. Ms Dye had taken an appeal to a Full Court to secure the right to agitate alleged events on 13 April 2007. She had succeeded in that endeavour. The case was then conducted in a manner which, to all intents and purposes, appeared to abandon the issue. More significantly, Ms Dye, in her own evidence, confirmed that she did not make allegations of assault against Mr Patterson otherwise than in June 2006 and that Mr Patterson from September 2006 to at least September 2007 acted as a friend and mentor. Nevertheless, over the objection of the respondents, I permitted Ms Dye’s evidence to be reopened.
531 Then Ms Dye gave evidence, in substance, to the effect set out in her February 2009 police statement. In her ensuing cross examination she was reminded of her evidence that Mr Patterson from September 2006 to September 2007 conducted himself conscionably. Ms Dye’s explanation for the inconsistency was that she forgot about the event on 13 April 2007. I do not believe her. The answer was false. This very matter received a great deal of attention before the Full Court. It is not possible that Ms Dye simply forgot about it.
532 The visit to Mr Patterson’s house followed Ms Dye’s conversation with Mr Blomfield to which her mother listened and took notes. They arranged to go to visit Mr Patterson. They arranged that Mrs Dye would leave after a respectable interval. That is what happened. Shortly before this alleged incident, Mr Patterson had been in hospital for back surgery. He recounted in his evidence how he had been in excruciating pain which was relieved by the surgery. Mr Patterson was in hospital for about a week and for two further weeks in March 2007 he was at home convalescing after the surgery. Thereafter, he was very careful about how he sat, picked things up and moved. He told me that his concern about a recurrence of
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his back problems endured to the day he gave evidence. At the outset, therefore, it seems most unlikely that Mr Patterson would risk a recurrence of this difficulty by wrestling with Ms Dye only a short time after coming out of hospital and being unable to attend work; but that is only the first of the reasons why the allegations must be rejected.
533 At the time this alleged assault occurred, at least one of Mr Patterson’s children was asleep in the house, and perhaps two. The youngest child was certainly asleep in her room. The Pattersons did not close the doors of their children’s bedrooms. The room to which Ms Dye says she was taken did not have a door on it at all. It was the room of one of the other children. Mr Patterson gave evidence that three of their four children, including the youngest, were light sleepers. The youngest, in particular, would wake at the slightest sound. The house had wooden floors. It was a noisy house, which was ultimately the reason why it was sold. Ms Dye’s account of the assault involved considerable physical effort on the part of Mr Patterson with him twisting and turning and pinning her on a bed before placing himself on her. It involved her crying and protesting. She attempted to retreat from these aspects of her allegations in her cross examination by suggesting that the events occurred silently. Ms Dye’s evidence then was that Mr Patterson then switched instantly to an attitude of empathy with her difficulties with Mr Blomfield and they proceeded to speak about that while having a cup of tea and Kit Kats.
534 One astonishing matter, if the account were true, is that no mention of such an event was made to Dr Parmegiani. On the contrary, Dr Parmegiani recorded that after he saw Ms Dye on 11 April 2007 she became increasingly better from 12 April 2007 until her next visit to him on 18 April 2007. That conclusion was based on Ms Dye’s own account of her feelings. She told him she was crying less, had no heavy feelings and by the evening of 12 April 2007 she was almost on a high and had maintained her improvement since then.
535 The following morning (14 April 2007) Ms Dye rang Mr Patterson at 9.36 am. For the next several weeks through to mid May 2007 they were again in frequent phone and text message contact. There were several days where they exchanged as many as five or even 10 phone calls and text messages. On 4 May 2007, Ms Dye invited Mr Patterson to her apartment. She asked him to bring a bottle of wine with him. She had never mentioned this occasion in any written statement. Ms Dye asked her building security manager to retain the video footage of Mr Patterson’s arrival and departure. She was not asked, and did not
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explain, why she did so. She subsequently subpoenaed the video footage and watched the video before the proceedings commenced. No doubt the video footage confirmed Mr Patterson’s arrival and departure. Ms Dye and Mr Patterson spent about two-and-a-half hours together in her apartment. Ms Dye said they were talking at length about a conversation she had had with Mr Furlong earlier that morning and at length about Mr Blomfield, Mr Selvarajah and Mr Carroll.
536 After the allegations against him came to his notice Mr Patterson commenced to make some notes of his interaction with Ms Dye. He was cross examined by Ms Dye’s counsel on those notes, and then re-examined on them also. Although they were not put into evidence the notes assisted him to recall, amongst other things, that Ms Dye during their discussion on 4 May 2007 had recounted to him that the previous evening she had attended a tour of “S&M” venues with some women friends. The tour had included a live sex show. The notes also referred to an occasion where Ms Dye had told Mr Patterson about one of her sexual experiences with a French man in 2006. Mr Patterson was challenged by counsel for Ms Dye on the appearance in these notes of the word “anal”. It was suggested to him that it must refer to Ms Dye’s account of his digital, vaginal and anal penetration of her on 9 June 2006. The difficulty with the proposition was that Ms Dye did not give such an account until January 2009. Mr Patterson made his notes in February/March 2008. On the contrary, Mr Patterson explained that it referred to a proposition which Ms Dye had made to him on 4 May 2007 that he should give her anal sex. There is no reason for me to disbelieve Mr Patterson about this matter. The evidence was elicited from him during his cross examination by counsel for Ms Dye. It was not contradicted or referred to when Ms Dye re-entered the witness box to give evidence in reply, as she ultimately did.
537 All of the foregoing matters persuade me that the allegations concerning 13 April 2007 were completely false. They, like others, appear to have been added to Ms Dye’s version of events at a time when she thought it might increase the pressure on the bank and CommSec to do so. The allegations do not seem to have been taken seriously by the NSW Police either. They were never brought to Mr Patterson’s attention.
538 Regrettably, this is another matter in which Mrs Dye became complicit. At one stage in her evidence in chief, Ms Dye was recounting things which she had told to her mother. No doubt this was intended to suggest some verisimilitude to her account. I asked her how she
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had such a good recollection of the particular conversations amongst the many that she had with her mother. Ms Dye said that she tells her mother everything and speaks to her almost every day. She insisted, however, that she could remember what she told her mother and what she did not. Her counsel asked her if she told her mother about the events of 9 June and 13 June 2006. Ms Dye said she did not. She was asked whether she told her mother about the events of 13 April 2007. She said she did not. All this evidence was given in re- examination, after Ms Dye’s cross examination was finished. However, Mrs Dye appeared to suffer under no such disability. She said in her evidence in chief that when Ms Dye arrived home on 13 April 2007, after the visit to Mr Patterson’s house, she told her mother that Mr Patterson had thrown Ms Dye onto one of his daughter’s beds and tried to kiss her. Mrs Dye was then able to recount the conversation which Ms Dye and Mr Patterson were supposed to have had at that moment.
539 Like the other allegations made, the allegation that Mr Patterson assaulted Ms Dye on 13 April 2007 at his house in Lane Cove was false. Each of Ms Dye and Mrs Dye gave untrue evidence about it. The February 2009 police statement as a whole appears to me to be a completely false and fabricated document. It is a disgrace that the allegations were ever made to the NSW Police, exposing Mr Patterson unjustifiably to an embarrassing, and perhaps highly damaging perception that he was under investigation for a criminal offence.
Conclusion
540 There is no instance in which I accept any of the allegations made against either Mr Patterson or Mr Blomfield, which were relied upon to support Ms Dye’s accusation of sexual harassment against each of them. I am satisfied in each case that the allegations were not only unproved, but were untrue.
MEDIA ATTENTION
541 On 30 November 2007, Mr Rochfort put Ms Dye’s claim for an additional cash settlement to the bank. By this time, Ms Dye had decided to allow her mistaken termination of employment to stand, rather than efforts continuing to find an alternative position for her. Other evidence, including her own communications and that of her mother, make it clear that at the same time she was searching for other employment. She continued to do that early in
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2008 in the United States. Presumably she had come to the view that she preferred to work elsewhere.
542 On 6 December 2007, the WorkCover Fraud Investigation branch rejected Mr Henderson’s allegations of fraud on the WorkCover system. On 10 December 2007, Mr Henderson forwarded the same material to Ms Adams at the bank. He threatened to provide copies of the correspondence to the WorkCover board, the relevant Minister (for Industrial Relations) and his counterpart in the opposition. He said that Ms Dye “reserves her right to raise these matters in print media and on radio and television at any time she chooses”. However, the first step that Ms Dye took was to sign a complaint to be lodged with HREOC, which she did on 20 December 2007. On 24 December 2007, Mr Rochfort sent the claim to the CEO of CommSec and invited conciliatory discussions. A handwritten note on this document suggests it was received on 2 January 2008. On 2 January 2008, Ms Dye emailed Mr Henderson the version of her statement which became the 2 January 2008 HREOC statement and it appears that it was provided to HREOC at the same time. Mr Henderson reviewed it shortly thereafter. On 4 January 2008, Mr Henderson encouraged Ms Dye to include more material, particularly concerning Mr Patterson, which she had apparently omitted, he thought, having regard to a meeting he had with her on 12 November 2007 when she went into detail about some matters. There is no suggestion, however, in Mr Henderson’s notes of that meeting, that Ms Dye made any allegations to him of physical conduct amounting to any form of assault by Mr Patterson. That came later. On 11 February 2008, Mr Rochfort sent to HREOC (copied to Mr Norris) an email drawing attention to the February 2008 HREOC addendum and indicating that he proposed to address those matters at a conciliation conference at HREOC on 20 February 2008. This document for the first time alleged assault by Mr Patterson. It is not clear whether conciliation proceedings went ahead on 20 February 2008 but there was certainly a conciliation conference conducted at HREOC on 26 March 2008. It was unsuccessful. Ms Dye then departed from Australia and went to New York but, as subsequent events show, she kept a close interest focussed upon developments.
543 On 4 April 2008, Ms Dye emailed Mr Rochfort attaching a newspaper article about a sexual harassment case. The article in The Australian newspaper referred to a Chief Executive of a company in the finance industry being sued “in a $1.2 million sexual harassment case”. Ms Dye asked Mr Rochfort: “Peter – can we jump on this bandwagon? Or
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do I actually have to file in the Federal Court before press? The Aust seems to he [sic] right onto this sort of stuff at the moment.” Mr Rochfort replied: “I’m on top of it, watch this space”. Ms Dye replied to him: “So am I!” This is a revealing rejoinder. Ms Dye’s close attention to the issue was confirmed shortly thereafter by her actual conduct.
544 On 7 April 2008, Mr Rochfort had a meeting with a SMH journalist, Ms Vanda Carson. Mr Rochfort gave Ms Carson a copy of the April 2008 published allegations, in “marked up” form. That afternoon, Mr Rochfort sent Ms Dye an email which included the following:
… I have spoken to both HREOC and to the Press (who are now hot to trot following last week’s revelation of a similar claim, and numerous contacts they have had what with all the recent publicity) and am proceeding to provide HREOC with a synopsis immediately identifying conduct by Bloomfield [sic], Patterson and Selvarajah, which the Bank needs to respond to this time on oath.
545 On Monday 14 April 2008, the SMH published an article by Ms Carson entitled “Banker Accused of Sexual Harassment”. The article concerned Mr Blomfield. It was based upon Ms Dye’s April 2008 published allegations. It alleged that Mr Blomfield “bombarded [Ms Dye] with sexual invitations, then isolated her when they were rejected”. It quoted from Ms Dye’s statement. On the same day, The Age newspaper in Melbourne published an article by Ms Carson to the same effect which went on to refer to Mr Patterson saying: “Ms Dye also accused the Sales Manager of the Premium Business Services Division, Angus Patterson, of harassment, claiming he restrained her by the wrists while he tried to have sex with her.”
546 The SMH article was published online by the Brisbane Times. At 8.42 am Ms Tasli, Mr Rochfort’s assistant, emailed Ms Dye a link to the SMH’s article by Ms Carson. She said: “I’m sure you will enjoy this”. At 9.26 am Ms Tasli emailed Ms Dye with a scanned colour version of the same article as it appeared in the SMH. At 12.14 pm (Sydney time) Ms Dye rang Mr Rochfort’s office and spoke to somebody there (Mr Rochfort or Ms Tasli) for two minutes and 30 seconds. At 12.38 pm (Sydney time) Ms Dye emailed Ms Tasli with the subject line “The Age mentions Angus”. The email contained a link to the article and said “The Age has run an additional paragraph on Angus. Would you mind confirming that Peter knows?” At 1.24 pm (Sydney time) Ms Dye emailed Ms Tasli with a link to the Brisbane Times’ online article. At 2.08 pm Ms Dye called Mr Rochfort’s office again. The call was
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for two minutes. Ms Dye, at this time, was obviously scanning the media and was quick to find all the stories on that day.
547 Mr Heath Aston from The Daily Telegraph saw the articles by Ms Carson and thought that the matter was worth pursuing. He attempted to contact Ms Dye. Mr Aston tried to ring Ms Dye at 2.24 pm and at 2.26 pm on 14 April 2008. At 2.28 pm Ms Dye rang Mr Rochfort’s office. The call lasted for five minutes and 30 seconds. At this point it was after 12.30 am in the morning in New York. At 2.52 pm Ms Tasli emailed Ms Dye. She said: “When you have a chance Viv, can you please give us a call, Peter has spoken to the Daily Telegraph and he would like to discuss it with you.”
548 Mr Aston’s evidence was that, after he failed to make direct contact with Ms Dye, he managed to contact Mr Rochfort, who invited him to his office in Pitt Street, Sydney. Shortly after Mr Aston arrived, Mr Rochfort gave him Ms Dye’s 181 page statement, which I have termed the April 2008 published allegations. Mr Rochfort was enthusiastic about the prospect of another story.
549 At 3.39 pm (Sydney time – 1.39 am in New York) Ms Dye called Mr Rochfort’s office. The call lasted for five minutes. Mr Aston’s evidence is that he was in Mr Rochfort’s office at the time and participated in the conversation. Ms Dye was told that Mr Aston had a copy of her 181 page statement. She was told that The Daily Telegraph would like a picture of her. Ms Dye said that she had a nice one she could send. A short time later, Ms Dye emailed Mr Rochfort with a photograph. The email said: “Will this do?”
550 The email was also forwarded to Ms Tasli’s email address who shortly afterwards forwarded it to Mr Aston’s email address and The Daily Telegraph picture desk. Mr Aston’s evidence was that he was still in Mr Rochfort’s office when the email with the photograph came through and he looked at the photo on Ms Tasli’s computer over her shoulder.
551 Mr Aston had originally intended to write an article for publication the following day, 15 April 2008. However, other matters took priority and The Daily Telegraph decided to plan for an article on 16 April 2008. Mr Aston’s evidence was that he approached the bank for comment but was unable to speak with either Mr Blomfield or Mr Patterson. Subsequently, the bank was very critical of Mr Aston and The Daily Telegraph for publishing
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without taking a further opportunity to verify Ms Dye’s allegations. However, a bank spokesman sent an email to Mr Aston on 15 April 2008 in the following terms:
I refer to your enquiry regarding allegations made by Vivienne Dye against Michael Blomfield, Angus Patterson and the Bank.
The Bank strongly disputes Ms Dye’s allegations.
The Bank believes any decision to publish an article denies natural justice to Mr Blomfield and Mr Patterson and unfairly besmirches their reputations.
The Bank has taken Ms Dye’s claims seriously – as it would with any allegations of harassment or discrimination. There have been a number of investigations into the claims made by Ms Dye, as a result of which the Bank has formed the considered view that her claims are unfounded. Accordingly, the Bank will strongly defend this matter and as part of its defence will say that:
• In early 2007, Ms Dye had been told by her manager that her performance was unsatisfactory.
• Ms Dye then initiated a complaint through the Bank’s Fair Treatment Review process. She did not raise any issue of sexual harassment. Her complaint was determined to be unfounded.
• In October 2007, Ms Dye asked the Bank to investigate her claims against Mr Blomfield. The Bank engaged an external person to conduct this investigation. The investigator found that there was ‘nothing to substantiate [Ms] Dye’s allegations of inappropriate behaviour’. Further, a number of witnesses expressed their high regard for Michael Blomfield’s character and care for other people.
• The allegation against Mr Patterson was only notified to the Bank in February this year. This was after Ms Dye had lodged her claim with the Human Rights and Equal Opportunity Commission and some 20 months after the incident is alleged to have occurred. Mr Patterson has flatly denied the allegation.
• The Bank has not made any offer to Ms Dye in relation to the settlement of her Human Rights and Equal Opportunities Commission claim.
Both Mr Blomfield and Mr Patterson have left the Bank. However, their departure was not related to the claims made by Ms Dye. The Bank has informed both Mr Blomfield and Mr Patterson that it continues to support them and will assist them in defending any claims which Ms Dye may make against them.
552 The Daily Telegraph elected to publish. At 12 midnight at the commencement of Wednesday, 16 April 2008, The Daily Telegraph published an article both in print and online. The print version contained Ms Dye’s photo (supplied by her) on the front page together with a banner “Bank’s $1m sex claim – new sleaze suit rocks big end of town”. The article itself appeared on page 7. The same photo, even more prominent, appeared again. In large letters
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there appeared the words “I cannot remember being alone in the office with Angus without him propositioning me for sex”.
553 The text of Mr Aston’s article drew upon the 181 page statement and included quotes from it. It published the allegation of assault by Mr Patterson on 1 June 2006 but attributed to it the date 31 May 2006. It indicated that Ms Dye’s statement could be read at The Daily Telegraph website. At that time, extracts were available on The Daily Telegraph website at the click of a button. They included the most salacious elements of Ms Dye’s April 2008 published allegations. The extracts which were made available were verbatim from Ms Dye’s statement and included all of her entries for 1 June 2006 (concerning Mr Patterson), 15 June 2006 (concerning Mr Blomfield) and 8 August 2006 (concerning Mr Blomfield).
554 At 7.52 am on 16 April 2008, Ms Dye called Mr Rochfort’s office. The call lasted for one minute. At 7.53 am Ms Dye rang Mr Rochfort’s mobile number. That call lasted for 10 minutes. At 8.07 am that morning Ms Tasli emailed Ms Dye and said: “I think you need to have a look at the daily telegraph, they ran the story its on the front page and page 7, as well as being all over the internet”. Then there appeared a smiley face emoticon. At 8.08 am Ms Dye called Mr Rochfort’s office again. The call lasted for six minutes. At 8.18 am Ms Dye called Mr Rochfort’s office and the call lasted for two minutes and 30 seconds. Ms Dye replied at 8.24 am to Ms Tasli and Mr Rochfort: “A Current Affair has said they will pay me money or ‘Put in a Bid’ for the story. Peter, do you want to suss it out?” A contact name and number was given by Ms Dye in the email at the same time. At 9.37 am Ms Dye called Mr Rochfort’s office (3 minutes) and again at 11.28 am (6 minutes 30 seconds). At 11.58 am Mr Aston called Ms Dye. That call lasted 9 minutes and 24 seconds. At 12.08 pm Ms Dye called Mr Rochfort’s office (10 minutes) and again at 12.25 pm (1 minute). At 12.26 pm Mr Aston called Ms Dye again (2 minutes and 12 seconds). At 12.29 pm Ms Dye called Mr Rochfort’s office (3 minutes) and at 12.34 pm (1 minutes and 30 seconds). At 12.41 pm Mr Aston called Ms Dye for a third time (5 minutes and 30 seconds). At 12.47 pm Ms Dye called Mr Rochfort’s mobile (1 minute) and then at 1.21 pm his office 8 minutes and 30 seconds) and again at 1.36 pm his office (1 minute). At 1.38 pm Ms Dye called Mr Aston’s mobile (1 minute) and at 1.44 pm Mr Aston’s mobile again (1 minute). At 1.47 pm Ms Dye called Mr Rochfort’s mobile (2 minutes and 30 seconds), at 1.51 pm his office (2 minutes and 30 seconds), at 2.25 pm his office (8 minutes), at 3.06 pm his office (1 minute and 30 seconds) and 3.58 pm his office (12 minutes). By the time this call finished it was after 2.00
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am in New York. At 6.48 pm Ms Dye called Mr Rochfort’s mobile again (2 minutes). It was now almost 5.00 am in New York. At 8.48 pm (almost 7.00 am in New York) Ms Dye rang Mr Rochfort’s mobile again for 1 minute.
555 Mr Aston’s evidence was that during the telephone conversations he had with Ms Dye he indicated that he would like some further photos. His original idea, because the matter was before HREOC, was to make it appear as though Ms Dye had been found in New York and photographed without her consent or co-operation. Ultimately the photos which appeared were obviously posed and clearly with Ms Dye’s active co-operation. Ms Dye also gave him some quotes. Mr Aston was careful that they concerned her feelings rather than the factual allegations. All of this occurred in the context where Mr Aston, as he discussed with Ms Dye and Mr Rochfort, proposed to do a follow up article as the first article had received a lot of attention.
556 On 17 April 2008, a second article appeared in The Daily Telegraph. It was introduced with a half-full page picture on page 1 of Ms Dye with a telephone and a coffee (obviously posed as Mr Aston said) with a large caption: “My emotional time fighting $1m bank case”. The story was on page 9. It was accompanied by another half-page photo. The story suggested that Ms Dye had fled to New York to “get her life back together” (a quote from Ms Dye). Ms Dye was also quoted as saying: “I’m attempting to sort my life out and get away from Sydney, it has been a very emotional time” and “It’s good to be away from it, it feels a bit like a burden has been lifted off my shoulders. I’ve been carrying this thing around for a long time”.
557 Meanwhile, some of the bank’s response was beginning to emerge and the article also drew attention to the bank’s claim that Ms Dye’s work performance was not satisfactory. Ms Dye claimed to be shocked at that, according to the article. The article also referred to the fact that The Daily Telegraph had seen performance review documents for Ms Dye. These were not provided by the bank. They were clearly provided by somebody on Ms Dye’s behalf. From the description, it appears to have been the more flattering picture painted by Mr Patterson in his assessment in the first part of 2006/2007.
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558 At 7.59 am Ms Dye called Mr Rochfort’s office (1 minute) and at 8.57 am (35 minutes and 30 seconds) and at 11.23 am (4 minutes and 30 seconds) and at 12.01 pm (1 minute).
559 The previous afternoon, Ms Carson had sent to Mr Rochfort an article which was published online by “Crikey.com.au”. The article read:
S-xual harassment complainant Vivienne Dye, whose allegations about lechery, assault and s-xual misbehaviour against Commonwealth Bank executives get a prominent run in today’s Telegraph, is well known in Sydney Young Liberal circles. She’s a former president of the Paddington Young Liberals branch and girlfriend of Alex Hawke, with suggestions the Paddington branch was stacked by the Right while she was involved with Hawke. Dye previously worked at Vodafone where, a former colleague says, she received a substantial payout for s-xual harassment.
560 On 17 April 2008 at 12.31 pm, Ms Dye sent Mr Rochfort an email about the Crikey article. It said:
Regarding the snippet from Crikey …
Prior to this year, I have never made a complaint about sexual harassment, nor was I ever sexually harassed during my time at Vodafone.
Another inaccuracy …
I am not the former President of Paddington Young Liberals, I am the President of the Paddington Young Liberals, an office I’ve held for many years.
A note for you on Vodafone …
Vodafone paid me a substantial sum of money to sign a deed of release in exchange for a termination/redundancy agreement five months into my employment. I was one of four, in an all female department, and I had been subjected to serious bullying and harassment by these three females whom I was at the time visibly outperforming. There was a significant disparity in the formal education, qualifications and technical competency between us. The company incentivized me to leave quietly under their “cultural fit” clause.
561 This email was shortly followed by a call from Ms Dye to Mr Rochfort’s office which lasted for four minutes.
562 The following day, 18 April 2008, the SMH published a further article by Ms Carson. It suggested that Ms Dye had received a “$20,000 payout for workplace bullying from her former employer” (Vodafone). Ms Carson was critical of The Daily Telegraph article
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missing this angle. These otherwise largely inconsequential media exchanges led to another example of lack of candour in Ms Dye’s evidence.
563 In her evidence in chief, Ms Dye had her attention directed by her counsel to the first paragraph in Ms Carson’s article of 18 April 2008 and the suggestion that Ms Dye had received a payout of $20,000 for workplace bullying. Ms Dye said that was not true. In her cross examination, Ms Dye was reminded of the fact that she executed a deed with Vodafone on 9 December 2004 referring to a gross payment of $22,000. No doubt that represented a net payment of about $20,000. Whether or not that is so is, in the circumstances, a matter of insignificant detail. In the deed the payment was expressed to be a payment for redundancy. However, in the light of Ms Dye’s own communication to her representative, Mr Rochfort, even making allowance for its condescending content, it was impossible in my view for Ms Dye to honestly deny that she had received a substantial payment for alleged workplace bullying, or at least that she had told Mr Rochfort that (who had obviously passed it on to Ms Carson). When Ms Dye was reminded of this in her cross examination her answers were evasive and unsatisfactory. Eventually, she took refuge in the suggestion that what she told Mr Rochfort was her perception at the time, but not now.
564 On 18 April 2008, two further articles appeared in The Daily Telegraph also. One was an “opinion” piece by Ms Janet Fife-Yeomans. It was complimentary of Ms Dye. It also was accompanied by one of the posed photos taken in New York. The second article on that day was another by Mr Aston. It referred to emerging “rumours” that Ms Dye had left her previous job “with a hefty payout for harassment” and to other claims that Ms Dye had used claims of sexual harassment in the political arena. One comment was attributed to a senior manager from an earlier employer: “She was not an easy-going person, certainly and I would say [former employer] wasn’t displeased with her departure”. Ms Dye sent an email to Mr Rochfort from New York that very same day asking him to “threaten” the former employer.
565 On the same day, Ms Dye sent an email to Mr Rochfort and Ms Tasli with the subject “Employment history for the Daily Telegraph”. The email said:
Vivienne was hired in March 2005.
Her department was taken over by Angus Patterson in April 2006.
She formally complained about Angus Patterson’s harassment of her in June 2006 and was told three week later by Angus that she no longer worked for him.
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Angus Patterson, however, continued to delegate work to her.
Michael Blomfield began to also delegate work to her in June 2006.
She continued to work for both Michael Blomfield and Angus Patterson until she was locked out of the building in April 2007.
566 Almost everything in the third, fifth and sixth entries is wrong. Ms Dye’s preparedness to misrepresent the true position is a pervading feature of her communications with her colleagues, her own representatives and, regrettably, extends to her evidence.
567 On Saturday 19 April 2008, Mr Aston wrote another story. Vodafone had stated that Ms Dye’s employment with Vodafone was terminated by mutual agreement. It said that all payments made to Ms Dye were provided as part of her “normal remuneration contract termination agreement”. The deed with Vodafone was in evidence in the present proceedings. It stated that the payment was made on account of redundancy. It may be that the payment did correspond with some scale of redundancy payments then employed by Vodafone, although Ms Dye’s explanation for the payment, given in her email to Mr Rochfort on 17 April 2008, should not be overlooked. The main point of the article, seems to have been to criticise the SMH, which was said to be under pressure to retract the accusation that Ms Dye had been provided a payout for harassment.
568 On 20 April 2008, Ms Dye sent by email to Mr Rochfort a full page colour photo of herself and her mother in the business class area of an aircraft holding up glasses of red wine in a salute. The subject of the email (which had no content) was: “Cheers to Peter”. Ms Dye was not travelling with her mother on an aircraft on that day. The photograph was obviously chosen to convey her appreciation to Mr Rochfort. That gesture stands in stark contrast with her evidence in the present proceedings to the effect that she was displeased with Mr Rochfort and displeased with the publicity about her sexual allegation claims, both of which assertions I reject. Ms Dye was not only closely monitoring the media coverage, she was actively contributing to it.
569 Two further articles were published about this time, so far as the evidence in the present proceedings discloses. One, published on Monday, 21 April 2008 concentrated on the consequences for Mr Blomfield in connection with a new job. During that day there were numerous phone calls between Ms Dye and Mr Rochfort’s office in a period of about one and
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a half hours commencing at 10.45 am On 22 April 2008, another article appeared in which there was a reference to Mr Blomfield in connection with his new employment.
570 On 7 May 2008, the SMH published an apology to Mr Blomfield and The Age published an apology to Mr Blomfield and Mr Patterson. The Daily Telegraph did not publish an apology.
571 Ms Dye’s evidence was to the effect that she neither authorised nor approved of the publication of her 181 page statement, or extracts from it, in the media. She said it was done without her knowledge or consent. I reject this evidence. It is clear beyond any doubt that Ms Dye was a central party to the organisation and implementation of a stratagem, agreed between she and Mr Rochfort, that she would publish her allegations in the media, apparently in an endeavour to assist her negotiating position. She authorised Mr Aston directly and co- operated with him in the provision of material to enhance his stories. Later Ms Dye found herself in contact with Mr David Penberthy, the then editor of The Daily Telegraph. They arranged to meet. In their initial exchange Ms Dye volunteered that “Heath’s [Mr Aston] good with his facts” and “let me know if you need anything now or in the future”. Mr Aston and his editor, Mr Penberthy, were both very firm in their evidence that Ms Dye knew of, and authorised, the stories which Mr Aston wrote and which The Daily Telegraph published. I accept their evidence. They each appeared to me to give evidence honestly, without unnecessary embellishment, objectively and independently.
572 The consequences of these matters are profound for Ms Dye’s case, apart from the implications for her credit, which is already in tatters. The only independent evidence, which was led in her case concerning the question of future economic loss, attributed any difficulties she might have finding employment to match her qualifications to the publication of her allegations of sexual harassment against Mr Blomfield and Mr Patterson. Those are matters for which she must take responsibility. Even had other aspects of her claims succeeded there would have been no foundation upon which Ms Dye could secure an amount of damages for future economic loss. The stratagem which she employed was very badly judged, highly damaging and was executed with a callous disregard for the interests of anybody else. In the end it achieved nothing for her but the possible destruction of her own employability.
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CAUSES OF ACTION
The pleadings in outline
573 There are a number of causes of actions articulated in the pleadings. In order to appreciate the detail and structure of Ms Dye’s case it is necessary to conduct a brief survey of the pleadings. It should be noted at the outset that the pleadings were quite convoluted and at times failed to establish basic causal connections required in order to make out some of the causes of action.
574 The pleadings commenced with details of Ms Dye’s employment with CommSec. The fifth further amended statement of claim in the Federal Court proceedings suggested that Ms Dye’s employment was subject to three separate contracts defined as the “March 2005 Contract”, the “May 2006 Contract”, and the “October 2006 Contract”. In the alternative it was pleaded that the May 2006 and October 2006 contracts took effect as variations of the initial contract of employment. The suggested division into separate contractual periods corresponded to the changes in working arrangements whereby Ms Dye commenced to report to Mr Patterson in late May 2006 and then transferred to LBB with effect from 6 November 2006.
575 I am satisfied that Ms Dye only had one contract of employment, although there is no doubt that it was varied from time to time. There is no doubt, also, that Ms Dye’s duties changed when she began to report to Mr Patterson and again when she commenced to work in LBB, reporting to Mr Selvarajah. Ms Dye was at all times employed at level 2 in the bank structure, which also applied to employees of CommSec. Ms Dye was, at least from May 2006, employed as a “business analyst”, a generic term for certain support roles within the bank.
576 It was pleaded that the bank’s policies and procedures were substantially, expressly, incorporated into Ms Dye’s contract of employment. This is a contention I shall deal with separately. Upon this foundation were erected some subsidiary propositions. One was that CommSec and the bank failed to properly apply the bank’s PF&R procedures, the bank’s continuous improvement policy and the bank’s FTR procedures. Another was that the bank and CommSec failed to investigate allegations of misconduct against Ms Dye in accordance with the bank’s own policies and procedures.
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577 It is convenient to say at once that no allegation was made against Ms Dye of misconduct as that term is used in any relevant policy or procedure. It is also convenient to state at this point that I reject the contention that there was any relevant failure to follow any policy or procedure in relation to continuous improvement or FTR. The evidence does not support such a suggestion. So far as any policy or procedure concerning PF&R is concerned, the highest point reached in the evidence was that some mid-term reviews may not have been formally done, or that an assessment by Mr Selvarajah was delayed while Ms Dye was certified unfit for full “pre-injury” duties. I have explained how that occurred. The suggested failures are inconsequential. They had no adverse effect on, or consequence for, Ms Dye.
578 That draws attention to a central defect in this part of the pleading. There was no satisfactorily pleaded causal relationship between an adequately identified duty or legal obligation and consequential, causally related, loss or damage resulting from a relevant breach of contract. Whatever the pleaded position, no case to that effect was made out by the evidence either.
579 The very structure of the fifth further amended statement of claim made it difficult to follow. An early example (commencing on page 4 of 68 pages in the fifth further amended statement of claim) may illustrate the point. On that page appeared the heading “Sexual Harassment/Discrimination by Mr Patterson”. Thereunder, it was pleaded that Mr Patterson “breached the implied term of trust and confidence and/or good faith and mutual cooperation” in stated alleged respects. This was an allegation of breach of contract, not of sexual harassment or discrimination. The content of the suggested implied contractual term (which conflated two separate matters sometimes suggested as implied contractual terms) was not identified in the fifth further amended statement of claim, nor otherwise in the proceedings. Mr Patterson was not a party to Ms Dye’s contract of employment; he could not personally breach it. Although it was later pleaded that CommSec was vicariously liable for Mr Patterson’s conduct, it was not pleaded that CommSec breached the suggested implied term. Instead, it was pleaded that all or parts of the conduct alleged against Mr Patterson “were unwelcome conduct of a sexual nature” and discriminated against Ms Dye by reason of her sex and that, as a result, CommSec (as vicariously liable for the conduct of Mr Patterson) was in breach of the SDA. On this foundation, it was pleaded that CommSec was liable to
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pay general damages to Ms Dye by reason of breach of that Act (not for breach of contract at common law).
580 An identical pattern of pleading (commencing at page 11) was followed with respect to conduct alleged against Mr Blomfield.
581 In substance, these pleaded matters raised allegations of sexual harassment and also suggested (without any real foundation) discrimination on the grounds of sex. They did not raise an adequate case of breach of contract.
582 Separately, it was alleged that complaints were made about Mr Patterson’s alleged conduct, and Mr Blomfield’s alleged conduct, and that the complaints were not adequately investigated. The only matter, on the evidence, which was raised against Mr Patterson during Ms Dye’s employment concerned the disagreement in New Zealand. It was, on the evidence, dealt with to Ms Dye’s apparently full satisfaction and resolved on terms drafted by her. There was no substance in that allegation. Any complaint against Mr Blomfield, which was ventilated by Ms Dye during her employment, was investigated and rejected. The evidence in the present case leaves no room for an allegation that complaints against Mr Blomfield were not investigated. The evidence leaves no room for any suggestion that such a complaint had any substance.
583 Commencing at page 16 of the fifth further amended statement of claim there were allegations that Mr Blomfield and Mr Selvarajah breached the suggested implied contractual term in various ways which revolved around Mr Selvarajah’s efforts to impress on Ms Dye the deficiencies in her work performance, which I have earlier discussed. This part of the pleading went nowhere further in terms of a possible cause of action in contract, but became incorporated in a general allegation of “victimisation” under the SDA. I shall discuss the place of “victimisation” in the SDA in due course.
584 Commencing at page 18, the fifth further amended statement of claim asserted a series of failures by CommSec’s “department of Human Resources”, which were alleged to represent a breach of Ms Dye’s contract of employment. This catalogue of alleged failures was then compendiously defined as “the ‘Victimising Behaviour’”. That compendiously
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defined catalogue of alleged failures was then used to support an allegation of victimisation under the SDA.
585 At page 21 of the fifth further amended statement of claim, denuded of supporting reference in surrounding paragraphs, was an allegation that CommSec breached Ms Dye’s contract of employment by failing to find another position for her when her position was declared redundant. In the alternative it was suggested that the alleged redundancy was really a wrongful dismissal. No specific remedy was claimed at this point. Shortly thereafter, however, termination of Ms Dye’s employment was pleaded to have been on the grounds of her “disability” and therefore contrary to the Disability Discrimination Act 1992 (Cth) (“the DDA”). Then damages for disability discrimination were sought. Neither at this point, nor elsewhere in the fifth further amended statement of claim, was Ms Dye’s alleged disability identified.
586 Finally, at paragraph 90 on page 24, it was pleaded that CommSec owed Ms Dye damages for breach of contract, specifically for lost remuneration, past and future. The plea relied, without distinction, on all that preceded it in the fifth further amended statement of claim.
587 Before I identify how the fifth further amended statement of claim proceeded with respect to other causes of action, it is necessary to say that the pleading to this point (and overall) did little to identify real matters in dispute, or adequate causes of action, and little to advance Ms Dye’s case. It is possible to conclude that the allegations of sexual harassment were central to the case Ms Dye had chosen to conduct. If proven, those allegations would probably, to some extent or other, have provided a respectable foundation for some form of relief under the SDA. It is impossible to be so charitable about the allegations in contract which, as the case was pleaded, and then run, tended to focus on Ms Dye’s sense of grievance about the fact that her work performance had been criticised. That sense of grievance was a long way removed from any respectable case in contract. Even before Ms Dye’s position was declared redundant there was no foundation for any claim for relief arising from the matters she wanted to ventilate. Once her position was declared redundant it became imperative to associate that declaration with a relevant contractual breach. Apart from the general allegation of conspiracy against her, for which there is no support on any reasonable view of the evidence, there was never any real prospect that Ms Dye could link the cessation of her
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employment with any actionable claim for relief in contract. That difficulty is accentuated by the fact that, ultimately, she refrained from keeping her employment contract on foot when she was able to do so.
588 As a separate cause of action, sitting like an island in a surrounding sea of contract claims, it was pleaded that CommSec, through Mr Blomfield, made representations to Ms Dye that if she did not pursue employment with Macquarie Bank she would “be able to access career progression in an operational capacity” with CommSec. It was pleaded that Ms Dye relied on those representations and “acted to her detriment” by accepting a position in LBB. As a result, damages were sought (which included, but were not confined to, payment of 25 years salary). The most charitable thing to say about this asserted cause of action and its foundation is that it failed on the facts. It was not to Ms Dye’s detriment that she was offered a position with LBB. Ms Dye did not forego a position with Macquarie Bank; she was unsuccessful in obtaining it. These unsuccessful attempts to invoke the provisions of ss 52 and 53B of the TP Act and ss 42 and 46 of the Fair Trading Act 1987 (NSW) (“FT Act”) were without any substance and will not be further discussed.
589 By an amendment permitted in February 2011, Ms Dye was allowed to plead a cause of action arising under the Fair Work Act 2009 (Cth) (“FW Act”) or alternatively the WR Act, but Ms Dye and her advisers were on notice from the outset that it would be argued against her that no possible cause of action was available to her under either of those statutes. The fatal obstacles were never confronted. The FW Act had no possible application. It was not in operation at any relevant time. Any claim for relief under the WR Act, of the kind sought, could not be entertained without a certificate under s 650 of that Act. None of the steps necessary to obtain a certificate, or secure a right to proceed in this Court, appear to have been taken. The claim may not be entertained. The inclusion of this claim was a waste of everybody’s time.
590 Next, the fifth further amended statement of claim for 30 pages or so, pleaded that CommSec and Mr Norris committed the tort of injurious falsehood. Amendment of the statement of claim to permit this matter to be pleaded was allowed by an order of a Full Court. The opportunity was wasted. That is, partly, because on the view I take the essential elements of the cause of action could never have been established. Moreover, the claim fails at every level. I shall discuss it in more detail in due course.
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591 Following upon the misconceived claim of injurious falsehood, the fifth further amended statement of claim asserted reliance on, effectively, some of the same matters to allege, first, a breach of s 42 of the FT Act. Then the same matters as in the allegation of injurious falsehood were explicitly relied on to allege a breach of s 52 of the TP Act. In both instances misleading and deceptive conduct was alleged. It is sufficient to say, for the moment, that these causes of action fail on the facts.
592 Then, breach of the SDA (by victimisation) was alleged against Mr Norris personally, and damages were claimed from him. The “detriment” to which Mr Norris was alleged to have subjected Ms Dye (or threatened to subject her) was not identified, but it was said to have been because she had made a complaint under the SDA (or proposed to) or alleged an act made unlawful by the SDA. That connection was not established by any evidence. There are other fatal problems but I need not discuss them yet.
593 Then a separate claim of injurious falsehood was made against Mr Blomfield personally. It relied upon the allegation that Mr Blomfield reported to Mr Matthews that, on 15 June 2006, he was told by others that they thought Ms Dye was “stalking” him. It also relied on Mr Matthews’ reference to “predatory behaviour” in his report as a republication of the injurious falsehood. The cause of action was one for Ms Dye to make out, in all its elements, including that Mr Blomfield’s statements were made with malice and were false. She also needed to establish loss. Every aspect of this cause of action fails. I shall discuss it a little further in due course.
594 Then a further claim of breach of the FT Act was made against Mr Blomfield, and a claim of breach of that Act and the TP Act was made against CommSec and Mr Blomfield based on the matters alleged to constitute injurious falsehood by him. This claim suffered from multiple defects. I shall mention them here and not return to the issue later, as it merits no further discussion.
595 Mr Blomfield was not making a statement in trade or commerce when he defended himself to Mr Matthews against Ms Dye’s allegations. Ms Dye also did not establish that she relied to her detriment on any statement made by Mr Blomfield to Mr Matthews. Neither did any such statement cause loss to her in her employment, or otherwise, at any relevant time. Ms Dye claimed to have been hurt, humiliated and distressed by Mr Blomfield’s defence of
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his own conduct in response to her allegations. This pleading, on the evidence in the present case, does not cross any threshold of respectability. Mr Blomfield is not legally liable to Ms Dye for any upset or humiliation caused to her. The causes of any such consequences may be traced to her own conduct.
596 The smorgasbord of claims made by the fifth further amended statement of claim resulted in a diffuse, unhelpful picture of Ms Dye’s claims and grievances. It hindered, rather than helped, the identification of any potentially serious or available cause of action and of material facts which might be relevant to any such cause of action. Most of the fifth further amended statement of claim was unnecessary. The matters to emerge from it, which required any real attention, were: the possibility of some genuine claim in contract arising from the course of Ms Dye’s employment and the allegations of sexual harassment against Mr Blomfield and Mr Patterson. Those matters, ultimately, yield no case for relief; the rest was dross.
597 The claim in the defamation proceedings was based (at least initially) upon the proposition that statements made by the bank (through Ms Chapman) in response to the publication of Ms Dye’s allegations in the media on, and shortly after, 14 April 2008 were defamatory of her. The cause of action in defamation fails for a number of reasons. It fails, apart from further more detailed reasons, because the pleaded imputations were true and because the statements by Ms Chapman were made on an occasion protected by common law qualified privilege. I shall discuss those matters in their turn.
Claims in contract
Breach of implied terms of contract
598 Specific conduct of Mr Patterson, Mr Blomfield and Mr Selvarajah was pleaded to be in breach of an alleged implied term of trust and confidence in Ms Dye’s contract of employment. Some of the alleged conduct was the same conduct said to constitute sexual harassment by Mr Patterson and Mr Blomfield. I have already explained why I reject all those allegations on the facts. I reject the further allegations so far as they might extend to Mr Selvarajah.
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599 There is real doubt about the legal foundation for the suggested implied term and there is no need for me to add greatly to that debate in this judgment because the present case cannot succeed on the facts. It cannot, in any event, provide any form of relief in contract. Its apparent use, in the pleadings, was to provide a list of factual allegations on which to then base claims of sexual harassment or sex discrimination or victimisation under the SDA. The result was a sort of catalogue of factual assertions from which, apparently, I was intended to make a selection of my choosing to sustain one or more of the intertwined causes of action which were referred to by this drafting technique.
600 It suffices to say, with respect to the allegations of breach of an implied term of trust and confidence, that material facts were not pleaded and proved such as could be satisfactorily linked with sufficiently identified content of such a term (thus generally expressed) if it exists. The same may be said of the alleged breach of a suggested implied term of “good faith and mutual co-operation”.
601 In McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903; 168 IR 375 (“Parnell Laboratories”), I expressed reservations about the general existence of an implied term of mutual trust and confidence, which judges in some courts have postulated as existing in addition to the express terms of contracts of employment. Part of my reservations, there expressed, arose from the need to always test the question of the existence and suggested practical content of any such implied term against the express terms of the contract (see B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (“BP Westernport”); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 (“Codelfa”) at 347).
602 I am not alone in that reservation (see Van Efferen v CMA Corporation Limited [2009] FCA 597; 183 IR 319 at [83]) or in my uncertainty about the jurisprudential foundation for the existence of such a term in Australia (see the cases referred to in Parnell Laboratories at [85]–[87]).
603 The case which would, so far as my own responsibilities were concerned, command most attention and necessarily be regarded as most authoritative is Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 (“Burazin”), a judgment of the Full Court of the Industrial Relations Court of Australia, composed of judges of this Court, which appeared to
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conclude that there was no support, in the English cases upholding the existence of the suggested term, for the proposition that damages would be available for breach of it. The significance of the term, if it exists, was said to rest upon its use as a foundation for claiming repudiation of contractual obligations. As I attempted to point out in Parnell Laboratories at [84] a free standing implied term of this kind is, however, scarcely necessary for that purpose.
604 Some cases now suggest that any implied term of mutual trust and confidence only applies during employment, but does not apply at the time of dismissal because that would be inconsistent with the fact of dismissal (see e.g. Rogan-Gardiner v Woolworths Ltd [2010] WASC 290 at [126]; Gillies v Downer EDI Ltd [2011] NSWSC 1055). That appears to leave relatively little work for the suggested term to do (except perhaps to operate as a ground for an allegation of repudiation as suggested in Burazin) and makes it of no utility in Ms Dye’s case in the present proceedings.
605 In McDonald v State of South Australia [2008] SASC 134, Anderson J of the Supreme Court of South Australia accepted the existence of an implied term of trust and confidence as a matter of law. Anderson J awarded damages for reasons which appeared to include damages flowing from a constructive dismissal resulting in part from breach of the implied term. The award of damages was set aside on appeal (State of South Australia v McDonald (2009) 104 SASR 344; [2009] SASC 219). The Full Court of the Supreme Court of South Australia, on appeal, observed that Anderson J had implied the term as a matter of law, rather than as an implication in a formal contract which met the tests in BP Westernport and Codelfa. The Full Court recorded (at [208]):
208 The State submitted that the Judge was incorrect in implying a term of mutual trust and confidence into Mr McDonald’s employment contract, contending that such a term did not form part of Australian employment contract law. The State submitted, in the alternative, that such a term was not necessary for the proper operation of Mr McDonald’s employment contract.
606 The Full Court then provided, with respect, a perceptive analysis of the origins and legal foundation for the suggested implication, mentioning a number of cases in Australia where its existence has been accepted or assumed or, conversely, doubted.
607 After this survey which, with respect, seems the most thorough so far undertaken in Australia, the Full Court said, nevertheless (at [234]–[236]):
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234 The determination of the State’s submission concerning the necessity for the implication of the term as to mutual trust and confidence in contracts of employment generally would require a closer analysis of the basis of the term, the nature, scope and effect of the term, and of the interrelationship of the term with other established terms and conditions of employment relationships than we have attempted so far.
235 As noted at the outset of these reasons Mr McDonald’s submissions, made as a self represented litigant, did not address adequately many of the issues of legal principle to which the appeal gave rise. In particular, his submissions did not address adequately the issues of principle which arose from the State’s submission that his contract of employment did not contain the implied term of mutual trust and confidence. We do not say this by way of criticism of Mr McDonald: only to indicate that the Court has not had the benefit of detailed submissions about these issues.
236 In these circumstances, we consider it inappropriate to determine the State’s submission that the implied term of mutual trust and confidence does not form part of Australian employment contracts generally. We think it sufficient to address only the State’s alternative submission that the implied term did not form part of Mr McDonald’s contract of employment.
608 The Full Court went on to find that no term of the character suggested had been implied into in McDonald’s contract of employment as a teacher, saying (at [270]):
270 In our opinion, the statutory and regulatory context in which Mr McDonald’s contract of employment operated made the implication of a term concerning mutual trust and confidence unnecessary. …
609 It also said (at [272]):
272 If, contrary to our conclusion, Mr McDonald’s contract of employment did contain an implied term of mutual trust and confidence, we doubt that it could be found to have been breached in a repudiatory way. That is because, in the determination of the nature and extent of any breach, account would have to be taken of the means of grievance resolution and appeal available to Mr McDonald. Even if he had been treated unfairly or inappropriately, the statutory and award context evinces an intention that his grievances should be addressed within the confines of the employment relationship, making use of the procedures provided.
610 A similar difficulty would arise for Ms Dye in the present case. There is no evidence to support the proposition that she lacked an adequate opportunity to raise any complaint or grievance which she had under the bank’s (relatively formal) policies and procedures. She certainly took advantage of those when she wished to. Furthermore, it is not possible to conclude that her employment came to an end for any reason connected with a breach of the suggested implied term, if it exists.
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611 I remain of the view, in light of the reluctance of the Full Court to rule against the argument that the term does not exist in Australian law, that it is not correct to imply such a term generally into contracts of employment. The outcome in that case illustrates that there will be cases where that is not appropriate. In any event, it would always be necessary for the term to be given practical and effective content. In the present case, I see no foundation for any conclusion on the facts that CommSec did anything which was inconsistent with “trust and confidence” as between employer and employee, whether that was a contractual obligation or not.
612 I draw attention to the following further observations of the Full Court (at [275]):
275 We add the following. The Judge’s finding that the Minister owed a duty not to act so as to impair mutual trust and confidence led the Judge to examine in considerable detail a series of matters which occurred in the course of Mr McDonald’s employment at Brighton. That, in turn, led the Judge to consider whether certain events along the way, and certain courses of conduct, amounted to unfair or harsh treatment of Mr McDonald, or amounted to poor management by the School Managers. We consider that this highlights the unsatisfactory consequence of giving a wide scope to a term requiring the maintenance of mutual trust and confidence, if such a term is to be implied. It leads to the Court becoming the forum for a detailed review of routine management decisions. There is no ready way of putting a limit to the range of matters which can be brought within the scope of the implied term and be said to be suitable for examination by a Court.
613 Those observations have a sufficient parallel in the present case.
614 It is not necessary to discuss whether there is a separate, free-standing, implied term of “good faith and mutual co-operation”. There was no lack of good faith on the part of the bank or CommSec in this case. The same cannot be said for Ms Dye’s conduct.
615 In the circumstances, I need enter no further into this debate in the present case.
Breach of express terms of contract
616 There are two broad categories of allegedly express terms which arise for consideration. There are first those which assert that Ms Dye was given promotions, promised education support, promised particular levels of bonus or would have “reasonable” notice of termination. Ms Dye’s contract of employment was made in writing on 4 March 2005. It was varied in writing at various stages throughout Ms Dye’s employment. It is to
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those documents that regard must be paid to discover the terms of Ms Dye’s contract of employment. I reject the suggestion of the other asserted terms to which I have so far referred.
617 The second group of suggested express terms are written policies and procedures of the bank and CommSec said to have been incorporated in Ms Dye’s contract of employment. A major theme in Ms Dye’s case (apart from her allegations of sexual harassment) was the suggestion that the bank (or CommSec) had breached some contractual arrangement under one or more of its own policies. None of those contentions had any merit factually. Nor did they have any legal merit. I take it to have been authoritatively decided in this Court that statements in policy or procedure documents which are exhortatory in nature, or are guidelines or are otherwise not apt to be given contractual force, are not incorporated into a contract of employment as terms of that contract (Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62). In any event, there was no failure to follow, or comply with, any relevant procedure, even if the ones suggested were to be regarded as contractual. Nor could there be any award of damages, having regard to the way Ms Dye’s employment came to an end.
618 I think it may be artificial in many cases to treat policies and guidelines of this kind as contractual terms in their own right. Quite apart from any other consideration, that is often clearly not their intent or purpose. They are often intended to provide a policy framework, rather than state reciprocal rights and obligations. They may be subject to unilateral, unannounced, un-negotiated change or withdrawal. Nor is it satisfactory to attempt to select some phrases and reject others as potential candidates for contractual terms, while putting aside the context provided by the whole document. The fact that employees are informed, when they commence employment, that “policies” of their employer must be understood, accepted and complied with does not change the essential character of those policies. Such a direction could as easily be given the following day or at any time during the employment. It is undeniably the prerogative of any employer to issue lawful instructions and directions to employees. Such instructions do not thereby lose their discretionary and unilateral character and become terms of the contract of employment. Nor does the position alter if policies or guidelines about matters of process are issued as instructions or directions to supervisors or managers. Such instructions do not thereby, in my view, become terms of the contract of employment of individual employees. The policies (even instructions) issued by the bank
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concerning continuous improvement or performance review or equal opportunity or harassment (or other policies) were probably not in my view contractual terms in Ms Dye’s contract of employment.
619 All that said, obviously everything turns on the circumstances of the individual case. In Cicciarelli v Qantas Airways Ltd [2012] FCA 56, Kenny J accepted (at [321]–[334]) that a statement in a letter of engagement that an employee was bound to abide by employer policies and procedures as determined or varied from time to time was a sufficient incorporation of those policies and procedures, and their terms, into a contract of employment, with the result that the employer was contractually bound to carry out a disciplinary investigation in conformity with its own stated procedures and guidelines.
620 I am prepared to proceed upon the same assumption without further discussion of the point because applying that approach to the present case does not assist Ms Dye and can make no difference to the outcome of the case.
621 In my view, Mr Selvarajah did not depart from the substance or effect of the policy about continuous improvement. Had he done so, it could provide no basis for relief in contract (or under any other cause of action) in the present proceedings for two reasons. First, any departure by Mr Selvarajah from the policy would have no contractual significance. He would not have “breached” the contract in any meaningful way providing a foundation for relief. Neither would his conduct be regarded as repudiation (on behalf of CommSec) of the contract between CommSec and Ms Dye, because it would not indicate that CommSec was unwilling to be bound by the contract. Secondly, Ms Dye did not “elect” to accept any such theoretical “repudiation” thereby treating her contract of employment as at an end. Ms Dye finally lost her employment, with her active consent, after her position was declared redundant. Until that time she took the full benefit of her contractual entitlements. When Ms Dye’s position was declared redundant, all her contractual entitlements were observed by CommSec also. In those circumstances there would be no basis for any form of relief in contract. In my view, the whole debate about this issue proceeded at a highly artificial and legally misconceived level. There is no foundation for any relief arising from it and there was no point pursuing it.
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622 Apart from those considerations, Mr Selvarajah did not depart from the policy. I set out the third stage of the continuous improvement policy earlier in this judgment. As I said earlier, the third (more formal) stage of the policy was never reached, despite the apparent desire of Ms Dye’s counsel to test Mr Selvarajah’s actions against it. Mr Selvarajah could, if Ms Dye had not gone on sick leave, have taken further steps but never had occasion to do so. Perhaps Ms Dye thought that is what he would do when she first deferred, and then failed to attend, the meeting scheduled for 15, and then 16, March 2007, or when she absented herself from work. Perhaps it is why she attempted to secure, with the apparently uncritical assistance of her medical practitioner, a return to work on the basis she would not have to interact with either Mr Blomfield or Mr Selvarajah. Those are all matters for speculation. None of them is relevant to the resolution of any cause of action because there was no departure from the continuous improvement policy. The history of Ms Dye’s disagreement with, and resentment of, Mr Selvarajah does nothing to advance her case in the present proceedings about any matter, because it is not relevantly connected with the circumstances in which Ms Dye’s employment came to an end, nor with any actionable loss suffered by her.
623 When Ms Dye’s position was declared redundant it was because a judgment was made that a position of business analyst in LBB Mid-East was unnecessary. Ms Dye had no contractual right to veto that judgment or insist that it be negotiated with her. Her contractual right was to consultation in the event of a redundancy situation, but that was after the necessary judgments had been made. Her right was to consultation about any future position. Obviously enough, when a judgment was being made about the necessity or desirability of retaining a position of business analyst in LBB Mid-East it was not a neutral circumstance that the position had remained unfilled during Ms Dye’s extended absence. That is not to say that Ms Dye was ultimately dismissed because she was on sick leave. I am satisfied she was not. However, it was unmistakeably the case that any contribution Ms Dye might make when she returned to work did not require the retention of a position which had remained unfilled for months, when there was a strictly imposed requirement to cut back on overall numbers.
624 CommSec had a contractual right of termination of Ms Dye’s employment provided it gave four weeks pay in lieu of notice and if it made the contractually required payment for redundancy. It did both those things. Contractually, it discharged its obligations. There would be no case in contract remaining. The present is not a case where any question might possibly arise of a contractual entitlement based on a legitimate expectation of long term,
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indefinite employment. Moreover, I am satisfied that Ms Dye finally left her employment voluntarily, rejecting an offer to reinstate the efforts to find her another position and withdraw her termination package (which of course she would have to repay). She appears to have had her sights set on some kind of financial settlement at the time and it must be taken that she made her judgments accordingly. Ms Dye agreed to the termination of her employment and freely gave up the possibility that it might continue. On that view also, there was no action available in contract.
625 In all those circumstances, a complaint, or any kind of debate about Mr Selvarajah’s judgments in December 2006 and February 2007 that Ms Dye had shown unsatisfactory behaviour in her work was only academic. It did not advance any cause of action in the proceedings.
626 In my view, it is also apparent that those charged with managing or conducting the various investigations which the bank carried out, particularly Messrs Mason, Matthews and Carroll, did so with complete fidelity to their responsibilities and to Ms Dye’s legitimate interests. Ms Dye’s method was to provide a good deal of unfocussed material, most of it unnecessary, from which to identify her complaint. It was accompanied by frequent criticisms of others, (often gratuitous and irrelevant) and declarations of the worth of her own contribution. This material appears to have been dealt with patiently, despite its contentious, often irrelevant and frequently inaccurate content. There is no substance in the criticisms frequently advanced on Ms Dye’s behalf in the present proceedings that her complaints were not fully investigated (so far as she herself permitted) or that she was in any way treated unfairly in, or by, the investigations.
Damages in contract
627 There is one further matter to mention. It is a fatal flaw in Ms Dye’s case in contract that there is no foundation for any award of damages for past or future economic loss, apart from the fact that no breach of contract was proved. Redundancy was not an unusual circumstance on the evidence in the present case. It said nothing about work performance. Ms Dye had a formal assessment of “meets expectations”. Although Mr Selvarajah and Mr Blomfield may not have been enthusiastic referees for her there is no reason to doubt that, at that time, Mr Patterson would have been supportive of her and Mr Tanner also may have been. Ms Dye’s contractual entitlements were all paid in full. On the evidence in Ms Dye’s
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case in the present proceedings, any damage to her future employability has occurred because her allegations of sexual harassment against Mr Blomfield and Mr Patterson were published in the media. That is a matter I will discuss separately. She had no case at all for damages in contract for past or future economic loss.
The Sex Discrimination Act
628 If Ms Dye was able to make out a case of sexual harassment, and establish that CommSec was liable for it, she would be in a position to seek an assessment of compensation for that matter. She has failed to make out any such case.
Sexual harassment
629 There is a probable limitation upon the operation of the SDA, which excludes any reliance on conduct outside Australia. The suggested limitation has been upheld in decided cases. It arises from s 9 of the SDA, which deals with the application of the SDA. Section 9(2) provides:
(2) Subject to this section, this Act applies throughout Australia.
630 Other subsections of s 9 go on to identify particular circumstances in which the SDA will apply. Some of those circumstances are not, by their own terms, confined to conduct in Australia, although none clearly identify conduct outside Australia either. It has been held that s 9(2) operates as an overall limitation on the territorial reach of the SDA (Brannigan v Commonwealth of Australia (2000) 110 FCR 566 at [16]–[18]; see also Vijayakumar v Qantas Airways Ltd [2009] FCA 1121). I would follow those authorities in the present case and, were it necessary to do so, ignore conduct attributed to Mr Patterson in New Zealand. However, that is not necessary because nothing done by Mr Patterson in New Zealand constituted sexual harassment.
631 Another limitation on the liability of CommSec should be mentioned. CommSec was Ms Dye’s employer but did not employ Mr Patterson or Mr Blomfield. CommSec would nevertheless be liable for their conduct (as was admitted) to the extent that it may be held vicariously liable. At common law, there are identified limits on vicarious liability for criminal conduct, even in the case of non-delegable duties of care and even when the conduct in question is perpetrated by an employee at the workplace (see e.g. State of New South Wales
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v Lepore (2003) 212 CLR 511; see also Modbury Triangle v ANZIL (2000) 205 CLR 254). I need give no further attention to those matters in this case because the SDA has its own provisions governing vicarious liability for the offences which it creates. Section 106 of the SDA provides:
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
632 It is Division 3 of Part II which is immediately relevant. It creates the offence of sexual harassment. “Sexual harassment” was defined at the relevant time by s 28A of the SDA (the first provision in Division 3 of Part II) as follows:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b ) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
633 Section 28B(2) and (6) provided:
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. …
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(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
634 “Place”, “workplace” and “workplace participant” were defined by s 28B(7) as follows:
(7) In this section:
place includes a ship, aircraft or vehicle.
workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
Workplace participant means any of the following: (a) an employer or employee; (b) a commission agent or contract worker; (c) a partner in a partnership.
635 Ms Dye was not a “fellow employee” of Mr Blomfield and Mr Patterson within the meaning of s 28B(2). Mr Blomfield and Mr Patterson were employed by CBA. Therefore, the relationship Ms Dye had with Mr Patterson and Mr Blomfield, for the purposes of the SDA, was that of “workplace participants”. The effect of the foregoing matters is that CommSec would be liable for sexual harassment of Ms Dye by Mr Blomfield, or Mr Patterson, at a place which was “a workplace” for both of them, but not otherwise. Ms Dye did not establish any greater foundation for liability than this, so far as CommSec was concerned. One consequence is that CommSec could not be liable for any but one (perhaps) of the assaults alleged against Mr Patterson, as none (except one perhaps) occurred at a workplace. The sole exception might be the alleged incident in a lift on 16 June 2006, but there is some doubt about that also having regard to the reason why, allegedly, Ms Dye and Mr Patterson were there at that time. It is not necessary to reach a final view about that issue. The limitation in the SDA is fundamental. It is fundamental to most of Ms Dye’s complaints against CommSec about Mr Patterson. It was never adequately addressed. Perhaps that is why some time was spent attempting to argue that Ms Dye was not really employed by CommSec, but that contradicted her pleaded case.
636 The limitation also has major significance for the allegations against Mr Blomfield, the most direct of which concerned encounters outside the building in which Ms Dye lived.
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Even if the events preceding these encounters (namely at Le Chifley and the Westin Hotel) were regarded as occurring at a workplace, a major gap in this part of the case was present which was never confronted.
637 Having regard to the limitations identified (including the territorial limitation if necessary), any liability which CommSec bore to pay compensation to Ms Dye, if sexual harassment by Mr Patterson or Mr Blomfield had actually been proved, would have been (at best) a small fraction of any amount Ms Dye or her legal representatives may have contemplated. It is unnecessary to analyse the matter in finer detail than that because, on the factual findings I have made, there is no foundation for the payment of any amount by CommSec or by Mr Blomfield in his own right.
Sex Discrimination
638 In a couple of places, the fifth further amended statement of claim suggested that Ms Dye was subject to discrimination on the grounds of her sex, as well as sexual harassment. Sex discrimination is defined by the SDA (relevantly for present purposes) as follows (s 5):
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(1A) …
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) …
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639 There is no evidentiary support for any proposition that Ms Dye was discriminated against on the ground of her sex, or in any way disadvantaged on that ground. Insofar as the suggestion was included in the pleadings it was, so far as it concerned the bank, CommSec, or any other person, just a generalised slur without any foundation.
Victimisation
640 The SDA, by s 94, creates an offence of victimisation. Most of the circumstances identified (by s 94(2)(a) to (f)) in which conduct will be victimisation depend upon it being established that the conduct occurred because of a complaint, the threat of a complaint, or some other step under the SDA or the Human Rights and Equal Opportunity Act 1986 (Cth) (now the Australian Human Rights Commission Act 1986 (Cth)). No allegation of this kind was available to Ms Dye against CommSec, or Mr Norris or Mr Blomfield personally. Ms Dye’s complaint to HREOC was made after her employment ceased. She made no prior threat of such a complaint.
641 That leaves for consideration the operation of s 94(2)(g) which provides:
(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: …
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
642 The unlawful conduct referred to (in Part II) includes sex discrimination and sexual harassment. There is no foundation in the evidence for any argument that CommSec, any of its agents, Mr Norris or Mr Blomfield personally, subjected Ms Dye to any detriment because she had alleged sexual harassment or sex discrimination. That is so for a number of reasons.
643 Taking Ms Dye’s allegations at face value for this purpose, the only allegations ever made against Mr Patterson during Ms Dye’s employment were, I am satisfied, the assertions to Mr Blomfield on 26 June 2006 that Mr Patterson had propositioned her in New Zealand and later, that Mr Patterson said something about sex toys. I accept things of this kind were
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said to Mr Blomfield even though I am satisfied they were not true at the time. However, no detriment was imposed upon Ms Dye as a result. On the contrary, Mr Blomfield arranged for immediate attention to her (false) allegations which she thereupon abandoned, achieving a rapprochement with Mr Patterson upon a different footing altogether.
644 In Mr Blomfield’s case, Ms Dye did not make a complaint of sexual harassment (or sex discrimination) until (possibly) 26 October 2007 in the timeline document. Before that time Ms Dye insisted that her complaints were not based on allegations of sexual harassment. She emphasised that to the FSU. Even Ms Dye’s letter of 26 October 2007 disavowed any intention to take the matter further at that stage. It was the bank who decided her assertions should be investigated. That was not the result of any urging by Ms Dye, who declined to be interviewed by Mr Matthews. Moreover, no allegation against Mr Blomfield resulted in any detriment to Ms Dye. Any assertions Ms Dye made against Mr Blomfield during her employment were made with complete impunity. She suffered no adverse consequence.
645 I reject any suggestion that Mr Blomfield, who, I accept, did not know the detail of what Ms Dye might be suggesting until late October 2007, acted against Ms Dye, or that Mr Selvarajah did. The allegation of victimisation against CommSec fails at the same time.
646 So does the specific allegation of victimisation by Mr Norris. The allegation against Mr Norris alleged, without any particularisation, that he subjected Ms Dye to a detriment because she had complained to HREOC or made an allegation of unlawful conduct under the SDA. The detriment was not identified. The means of imposing it were not identified. The allegation was without any substance as a matter of pleading and without any support in the evidence. It was advanced as part of a strategy, apparently, of adding Mr Norris to the proceedings in a personal capacity. That step was unnecessary and unwarranted.
Disability Discrimination
647 The fifth further amended statement of claim alleged simply that Ms Dye’s employment was terminated on the grounds of her disability within the meaning of s 5 of the DDA. Section 5 of the DDA is a definition section. It provided at the relevant time:
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the
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discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services maybe required by the person with a disability.
648 Presumably, the pleading was intended to invoke the provisions of s 15(2) of the DDA, which provided:
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
(a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by terminating the employee; or (d) by subjecting the employee to any other detriment.
649 “Disability” is defined in s 4 of the DDA as follows:
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person’s body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future; or (k) is imputed to a person.
650 Ms Dye’s alleged disability was not identified, although the fifth further amended statement of claim referred to Ms Dye being “unfit for work” and to medical certificates to that effect. The pleading was, in my view, insufficient to raise any cause of action. In any
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event, there is no evidence that Ms Dye was subject to any form of discrimination on the ground of any form of disability.
651 Ms Dye’s medical certificates were accepted and acted upon. She was not subject to any form of detriment, much less was her employment terminated, because she was allegedly unfit to carry out her ordinary duties. Her employment came to an end in the circumstances I have described.
Workplace Relations Act
652 I have already mentioned that reliance on the pleaded cause of action under the WR Act suffered, from its inception, from a fatal flaw. The jurisdiction of the Court was not engaged. No attempt was ever made to show that the Court’s jurisdiction had been engaged. This seems to have been one of a number of examples where something was included in the fifth further amended statement of claim in the hope that sheer numbers and variety of allegations might work to Ms Dye’s advantage. The suggested cause of action should not have been included at all.
Trade Practices Act
653 There were two separate attempts to invoke the TP Act. One concerned the suggestion that Ms Dye gave up a position with Macquarie Bank. I have dealt with that allegation and will not return to it. The second was based on the same matters relied on to suggest injurious falsehood, to which the further observations below refer.
654 Apart from the pleading difficulties mentioned earlier, this cause of action, seeking to invoke s 52 of the TP Act, had a fundamental defect which defeats it, apart from the fact that the factual allegations on which it was based were not established.
655 Section 52 of the TP Act established a standard of conduct, but it did not operate to provide a free-standing cause of action. A cause of action must be independently identified. In the present case, although not properly pleaded, a relevant cause of action could only have been an action for damages, based on alleged, and established, loss. That would have required Ms Dye to prove that she relied to her detriment on the misleading and deceptive conduct which she alleged. A case of that kind was not established. It could not be.
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656 Ms Dye’s employment was over by the time of the conduct referred to. Her own allegations had been published in the media. The conduct complained of was the publication (and republications) of responses to Ms Dye’s assertions. It was not pleaded that Ms Dye relied to her detriment on any such publication (or republication). It was not established by any evidence that she did. In any event, the evidence in her own case suggested that the cause of any loss to her arose from the publication of her own allegations. None of the respondents may be blamed for that. I have found that Ms Dye, herself, was responsible.
657 This cause of action was misconceived. It had no substance.
Fair Trading Act
658 The same difficulties arise for the causes of action based on s 42 of the FT Act. The causes of action again were based on two separate classes of allegation and the same defects as applied to the causes of action under the TP Act are fatal to these causes of action.
Injurious falsehood
Injurious falsehood – CommSec
659 The proceedings include a cause of action alleging injurious falsehood, a tort. That cause of action was added, on 30 September 2010, to the Federal Court proceedings, after Ms Dye’s ultimate legal representatives were engaged, but not without some debate.
660 On 23 August 2010, Katzmann J refused an application to amend the pleadings to include the cause of action but, on appeal, a Full Court reversed that decision and gave the necessary leave. The resulting additional pleading was voluminous. It did not, in a number of respects, conform to the requirements stated by the Full Court for adequate precision, but no attention need now be given to that feature of the additional pleading.
661 After some further amendments, the final pleading was a fifth further amended statement of claim (i.e. the seventh version). The additional pleading of injurious falsehood occupied 31 pages of what was, finally, a 68 page document. Reduced to its essentials, the injurious falsehood pleading covered much of the same ground as the defamation case. The essential difference was that different respondents were named (here, CommSec, Mr Norris and Mr Blomfield) and the proceedings were not subject to a one year limitation period.
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662 Although the pleading in the Federal Court proceedings deals with similar matters to the defamation case, injurious falsehood is a separate tort from defamation and has its own essential ingredients. It involves the publication of a false statement concerning a plaintiff’s goods or business made maliciously which results in actual damage to a plaintiff. Gummow J observed in Palmer Bruyn and Parker Pty Ltd v Parsons (2001) 208 CLR 388 (“Palmer Bruyn”) (at [58]) that the tort of injurious falsehood, in contradistinction to the tort of defamation, protects proprietary and commercial rather than personal interests. In earlier times, the tort of injurious falsehood was sometimes referred to as slander of goods (see e.g. Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799D). The damage which is compensable for injurious falsehood is not injury to reputation; what must be injured is a person’s business or goods. The necessity for this last element of the cause of action to be made good does not appear to have received any particular attention before the Full Court, which concentrated its attention on whether Katzmann J should have declined to permit the cause of action to be pleaded having regard to the delay in proposing to do so. Nevertheless, Ms Dye’s case about injurious falsehood bore this flaw from its inception, quite apart from other difficulties I shall mention shortly.
663 In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, Gleeson CJ mentioned (at 693) “an interesting question as to how far the action for injurious falsehood extends beyond the concepts of business or property”. The issue was mentioned again in Palmer Bruyn but not resolved (see per Gleeson CJ at [1], per Gummow J at [60]). In the present case I would not be prepared to extend the existing categories of actionable loss to accommodate academic commentary which has suggested the limits of injurious falsehood have been set too narrowly and should be expanded in Australia.
664 Although there are cases where a person, whose profession or business depends upon their personal standing in the community or in the world of business or in their own profession, may claim damages for an injury to their trade or business arising from a maliciously false statement made about them, that is not the present case. Ms Dye was not pursuing a trade or business in the sense contemplated by those cases. She was an employee in a large organisation at a relatively junior level. No property or commercial or business interest of the kind necessary for this tort was pleaded, much less established. Ms Dye sold no product, had no custom to be lost, had no professional practice to be injured and had no business to be damaged. In my view, this cause of action was misconceived from the outset
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and, for that reason alone, could never succeed. In any event, it fails every other test on the facts.
665 There is considerable confusion arising from the way the pleading was constructed with respect to this cause of action but, concentrating on core matters, allegedly false statements were said to have been made by CommSec (through various agents), and later republished, to the effect that:
(a) Allegations made by Ms Dye against Mr Blomfield were false; (b) Allegations made by Ms Dye against Mr Patterson were false; (c) Ms Dye’s work performance was declared unsatisfactory in early 2007; (d) Ms Dye did not raise allegations of sexual harassment against Mr Blomfield until after April 2007 (i.e. after the FTR process); (e) Ms Dye first made allegations to CommSec about Mr Patterson in 2008; (f) Ms Dye chose to fight the issue in the media; (g) Ms Dye conducted herself in a manner which warranted her being sued by Mr Patterson and/or Mr Blomfield, with the support of the bank or CommSec; (h) Ms Dye’s allegations had “besmirched” the reputations of Mr Blomfield and Mr Patterson; (i) CommSec had carried out a series of in-depth, swift and thorough investigations; (j) Ms Dye had shown predatory behaviour towards Mr Blomfield; (k) A number of people referred to questionable behaviour by Ms Dye.
666 These allegations against CommSec are fraught with problems.
667 Many of the statements were not made by CommSec, or by persons shown to have been the agents of CommSec; they were made by officers, employees or agents of CBA, which was the employer also of Mr Blomfield and Mr Patterson, but not of Ms Dye.
668 Some of the statements were not, by their nature, ones which could result in loss or damage of the necessary kind. Certainly, no loss or damage was shown to have resulted from
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the statements. I shall deal later with the general question of damages, but the evidence led in the applicant’s case attributed any predicted difficulty in obtaining future employment to the publication of her statements about Mr Patterson and Mr Blomfield, and not to anything said by CommSec (or CBA).
669 Malice was not proved. I am satisfied there was no malice in any of the statements.
670 The statements were almost universally true. The few areas where there might have been some room for debate – e.g. perhaps Ms Dye made some kind of complaint about Mr Patterson before 2008 (i.e. to Mr Blomfield) – did nothing to assist her case and nothing to change the overall picture.
671 Loss was not proved. Ms Dye’s damage from the statements relied upon was said to have had the following consequence (the same unsustainable allegations were made against Mr Norris and Mr Blomfield):
The Applicant was injured in her trade and profession and has incurred and will continue to incur ongoing loss in the form of employment opportunities and actual monetary loss as a direct result of the said statements.
672 The allegation is without any substance. There was no evidence to support it. What evidence there was in Ms Dye’s own case contradicted it. Failure of any case on loss is a sufficiently fatal flaw in its own right.
673 On the findings of fact I have made, and even independently of them, no case for relief was made out against CommSec for injurious falsehood. The case in that respect was, in my view, a hopeless one from beginning to end.
Injurious falsehood – Mr Norris
674 The case in injurious falsehood against Mr Norris can fare no better. The allegedly false statements were:
(a) the CBA group had thoroughly investigated allegations against Mr Patterson and found them unfounded; (b) the CBA group had thoroughly investigated allegations against Mr Blomfield and found them unfounded;
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(c) the CBA group had thoroughly investigated complaints by Ms Dye about victimisation and found them unfounded.
675 As to the first matter, as the discussion about factual matters earlier in this judgment will have shown, there was limited opportunity only to investigate allegations against Mr Patterson before Ms Dye’s employment came to an end because she made extremely few, and she made those in circumstances apt to cast doubt on their veracity when she would not pursue them – e.g. in June 2006. The same general comment may be made about the third matter. However, these are little more than debating points (at this stage) and need not be pursued. When Mr Norris (and Ms Chapman) dealt with the April 2008 published allegations they made a comprehensive response. That is unsurprising in the circumstances. I am prepared to accept that Mr Norris said something to the effect alleged in each case. Mr Norris’s statements have been shown to be correct. I am satisfied that they were not made with malice.
676 Loss was not proved. The case in injurious falsehood against Mr Norris was, like the case against CommSec, misconceived from the outset.
Injurious falsehood – Mr Blomfield
677 As I earlier observed, Ms Dye bore the onus of establishing each element of this cause of action. None was proved.
678 I need not repeat my earlier reservations about whether this cause of action was available at all to Ms Dye because she did not engage in the necessary trade or profession or conduct the necessary business. That is only the first of the difficulties.
679 The allegation against Mr Blomfield was that Ms Dye has been damaged from November 2007 by statements made by Mr Blomfield. Those were statements made by Mr Blomfield to Mr Matthews for the purpose of his investigation into Ms Dye’s timeline document. In particular, the statement alleged to have injured Ms Dye “in her trade or profession” was the statement by Mr Blomfield that two of his female colleagues had, on the evening of 15 June 2006 at Le Chifley, warned him that “I was being ‘stalked’ [by Ms Dye] and to be careful”.
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680 Mr Blomfield’s statement to Mr Matthews that Ms Dye was stalking him was based on reports from others. The use of the word “stalked” was summary and descriptive. Ms Dye asserted, but did not prove, that the statements referred to by Mr Blomfield were not made. One of the women gave evidence. She confirmed that she warned Mr Blomfield. On the evidence I am satisfied that Mr Blomfield’s statement to Mr Matthews was not an unfair summary of what he was told, and what he could observe for himself. It was not false. The cause of action fails at this point.
681 Not only can Ms Dye not prove falsity, she cannot prove any other element. Mr Blomfield was defending himself against the allegations in the timeline. His response was not malicious, it was defensive and explanatory.
682 The statement to Mr Matthews and Mr Matthews’ report were independent of the cessation of Ms Dye’s employment. Mr Matthews’ report was not provided to the bank until after Ms Dye’s employment had come to an end (with her acceptance).
683 Put shortly, therefore, Ms Dye did not (and could not ever in the circumstances) establish falsity, malice or loss, each an essential ingredient of the cause of action, assuming it was available to her. It too must be dismissed.
Defamation
684 The defamation proceedings were transferred to this Court by the Supreme Court of NSW, where those proceedings were commenced. The respondents to the defamation proceedings are CBA and Ms Chapman. In order to succeed in an action for defamation a plaintiff must identify a publication which conveys a meaning that was likely to cause ordinary, reasonable members of society to think less of the plaintiff. The impression to be considered is the broad meaning conveyed by the publication as a whole. Even a true statement may be “defamatory” in this sense, but truth is nevertheless a complete defence. A plea of truth assumes a defamatory meaning, otherwise it would not be necessary. Another defence is that the publication is protected by “qualified privilege”. This defence will be made out in various situations which include those where the publisher has an interest in making the publication in furtherance of his or her own interest, to a person who has an interest in receiving it. Included in such occasions is “reply to attack”, about which I shall say more in due course. A defence of this character may be defeated by malice. A defendant
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bears the onus of establishing a defence but the onus lies upon a plaintiff who asserts that a defence is defeated by malice.
Defamatory meaning
685 Section 8 of the Defamation Act 2005 (NSW) provides:
8 A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.
686 In the defamation proceedings, two allegedly defamatory “matters” were relied upon. Each was said to carry multiple defamatory imputations about Ms Dye. The first matter was an email from Ms Chapman dated Wednesday, 16 April 2008 (Schedule A to the further amended statement of claim). This email was published to General Managers, Executive General Managers and Group Executives as at 16 April 2008. The “sense and substance” of the email was allegedly republished in the article in the SMH article by Ms Carson on Friday, 18 April 2008 with the heading “Second case for woman in sex harassment claim” to which I have earlier referred (Schedule B).
687 Schedule A was said to carry the following defamatory imputations:
(a) The Applicant made false allegations that Mr Patterson had sexually harassed her to the Commonwealth Bank.
(b) The Applicant made false allegations that Mr Blomfield had sexually harassed her to the Commonwealth Bank.
(c) The Applicant has conducted herself in such a manner as to warrant being sued by employees of the Commonwealth Bank.
(d) The Applicant wrongly leaked information to the media that was the subject of a Human Rights and Equal Opportunities Commission investigation.
688 The second allegedly defamatory matter was originally asserted to be an oral statement made by Ms Chapman on or about 16 or 17 April 2007 (Schedule C). By an amendment filed on 30 November 2010, the second matter was said to be alternatively constituted by an email from Ms Chapman sent on 14 April 2008 to bank Group Executives, Executive General Managers and General Managers (Schedule D). The lack of conformity in the dates attributed to Schedules C and D was not satisfactorily addressed. They are not in the same terms. Nevertheless, the defamatory imputations said to be carried by the second
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defamatory matter (constituted by the alleged oral statement on or about 16 or 17 April 2008 and/or the email on 14 April 2008) were said to be:
(a) The Applicant was an incompetent employee of the Commonwealth Bank in that her work was unsatisfactory.
(b) The Applicant made false allegations that she had been sexually harassed by executives of the Commonwealth bank.
(c) The Applicant had fabricated allegations of sexual harassment against executives of the Commonwealth bank, because she had received a review from he [sic] Commonwealth Bank that her work was unsatisfactory.
689 The “sense and substance” of the second defamatory matter was allegedly also republished by Schedule B.
690 Schedules A, C and D are set out below. The three paragraphs from Schedule B relevant to the defamation proceedings are also reproduced thereafter.
Schedule A – email 16 April 2008
From: Group Executive HR and Group Services Sent: Wednesday, 16 April 2008 To: Subject: Message from Barbara Chapman
This morning The Daily Telegraph and other media have run a salacious and sensational story about allegations of sexual harassment against two former members of the Group, without any regard for the facts. The article follows similar stories which appeared in the Sydney Morning Herald and The Age earlier in the week, which we defended vigorously at the time.
Let me be clear – this organisation takes the issue of sexual harassment very, very seriously. But so too do we value fairness, honesty and an individual’s right to natural justice.
The allegations made by Vivienne Dye against Michael Blomfield and Angus Patterson were taken very seriously when they were raised. A series of in-depth investigations were undertaken and the claims were found to be unsubstantiated.
The steps we are taking today to protect the reputations of Angus and Michael include:
• Trying to have the offending material removed; • Working to stop it being spread further; • Supporting them in considering what action they would like to take against Vivienne Dye and her adviser.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human
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Rights and Equal Opportunities Commission.
Regards
Barbara Chapman
Schedule C – alleged oral statement 16 or 17 April 2008
1 The Commonwealth Bank has investigated Vivienne Dye’s claims of sexual harassment and it has concluded that they are unfounded.
2 The Commonwealth Bank will strongly defend this matter and will argue that Ms Dye did not even make these claims or raise any issue of sexual harassment until her work performance as a marketing and business analyst was declared to be unsatisfactory by the bank early last year.
Schedule D – email 14 April 2008
From: Group Executive HR and Group Services Date Sent: Monday, 14 April 2008 14:24:48 Date Received: Monday, 14 April 2008 14:24:49 To: CBA Group Executives; CBA Executive General Managers; CBA General Managers CC: BCC: Subject: Response to serious unfounded allegations in this morning’s press No of Attachments: 0 Attachment Name: None ______
Dear Colleagues,
You may have seen an article that appeared in this morning’s Sydney Morning Herald and The Age newspapers regarding allegations made by a former PBS staff member, Vivienne Dye against Michael Blomfield and Angus Patterson.
The Group takes any claims of inappropriate behaviour very seriously. When these allegations initially came to light, the matter was investigated internally swiftly and thoroughly. We are satisfied that Ms Dye’s allegations are unfounded and without basis.
We are extremely disappointed that it appears Ms Dye has chosen to fight this issue in the media before the matter is dealt with in the proper manner through the Human Rights and Equal Opportunities Commission. We feel this approach has removed the basis of fair play and not afforded Michael Blomfield and Angus Patterson the opportunity to defend themselves.
We are writing to the newspapers involved today to express our concern at their role in publishing unfounded information aimed to damage the reputation of our two former employees.
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The matter and allegations against the two former staff members will be strongly defended in the Commission.
Regards,
Barbara
______
Commonwealth Bank Barbara Chapman Group Executive HR & Group Services Level 2 48 Martin Place Sydney NSW 2000
Schedule B – alleged republication – SMH article 18 April 2008
In a statement to the Herald, the bank’s head of human resources, Barbara Chapman, said the bank’s investigations had found Ms Dye’s claims were “unfounded”.
The bank would “strongly defend this matter”, in the Human Rights and Equal Opportunity Commission and would argue that Ms Dye did not raise any issue of sexual harassment when her work performance as a marketing and business analyst was declared unsatisfactory early last year.
Another bank spokesman, Bryan Fitzgerald, said the bank “strongly denied the allegations that have been made [by Ms Dye]”.
691 It is convenient to concentrate first upon the second allegedly defamatory matter, said to be constituted by Schedules C and/or D (republished in Schedule B).
692 By the end of the trial, after 94 days, there was no evidence to support the pleaded assertion that Ms Chapman had made an oral statement to any person in the terms of Schedule C. It was, however, submitted by Ms Dye’s counsel that a sufficient similarity appeared between the unproven oral statement allegedly made in Schedule C and the terms of the article in Schedule B (said to constitute republication of the sense and substance of Schedules A, C and D) that I should infer that such a statement had in fact been made orally by Ms Chapman.
693 This submission is unsustainable. Not the least of the problems associated with it is that Schedule B allegedly republished the sense and substance of three statements, two of which were written. Schedule B itself makes no reference to an oral statement by Ms
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Chapman. Ms Chapman, in fact, wrote two letters to each of the editors of the SMH and The Age (one for publication and one not for publication) on 14 April 2008 after publication of Ms Carson’s articles. The letters are referred to in Schedule D itself. There is no basis to infer or conclude that Schedule B republished an oral statement, or that such a statement was made as pleaded.
694 By the amendment made on 30 November 2010, the further amended statement of claim asserted that “the second matter complained of” (which included Schedule C) was published to persons who included “Vanda Carson at Fairfax Media Publications Limited”. Ms Carson was the author of the article at Schedule B. There was no evidence called from Ms Carson to prove this assertion and there was no other evidence about it. In the circumstances, the applicant failed to prove an oral publication in the terms of Schedule C. That makes little difference as the claim in defamation based on Schedule C fails for other reasons.
695 Schedule D is also, for different reasons, unavailable as a foundation for the defamation proceedings. The defamation proceedings were commenced under the Defamation Act 2005 (NSW). Under the Limitation Act 1969 (NSW) they were required to be commenced within one year of publication of the allegedly defamatory material (s 14B) unless an extension of time (to a maximum of three years) was granted (s 56A). The defamation proceedings (which were not, at first, founded upon Schedule D) were commenced on 15 April 2009 just one day inside the limitation period relating to the publications alleged in Schedules A and C. The publication alleged in Schedule D was earlier in time (14 April 2008). It was outside the one year limitation period. Schedule D was added on 30 November 2010 pursuant to leave to amend granted on 24 November 2010. That grant of leave did not, in terms or in effect, operate as an extension of time under s 56A of the Limitation Act. The amended defences filed in response pleaded explicitly that no cause of action, based on Schedule D, was maintainable because of the limitation in s 14B of the Limitation Act. There things remained until the last few days of the trial when, unsurprisingly, the respondents insisted on the point. On the second last day, and again on the last day, of the trial I rejected applications made in submissions in reply by counsel for Ms Dye, for an extension of time under s 56A. In any event, even the extension to a three year period permitted in some circumstances by that section had by then expired. Accordingly, Schedule D is not available as a foundation for any relief.
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696 As neither Schedule C or Schedule D are available, the second matter complained of is not available. However, as I said earlier, any action based on it would fail in any event. I shall deal shortly with the second matter complained of as though it was open to Ms Dye to rely upon it.
697 As to the first matter complained of (imputations arising from Schedule A, which were republished in Schedule B), I am prepared to accept that imputations (a), (b) and (c) are carried by the email which is Schedule A and that imputations (a) and (b) were republished in Schedule B. I am not prepared to accept that imputation (d) was carried by Schedule A. Schedule A responded to an article in The Daily Telegraph which was accompanied by on- line extracts on The Daily Telegraph website of extracts from the statement (the April 2008 published allegations) by Ms Dye of 181 pages. I regard a suggestion made in submissions, that an inference might reasonably arise that CBA had provided the statement to The Daily Telegraph so that it might “control” the media coverage, as fanciful. It inevitably “appeared” as though Ms Dye had “chosen” to fight the issue in the media. It also is clear that Ms Chapman asserted that the “proper” forum was HREOC, at least at that stage. However, I do not regard as carried the imputation that Ms Dye “wrongly” leaked information, just because it was the subject of a HREOC investigation.
698 In my view, neither imputation (c) nor (d) was republished in Schedule B. However, as will appear hereunder, despite my resistance to the proposition that imputation (d) was carried by Schedule A, or that imputation (c) and (d) were republished in Schedule B, nothing ultimately turns on that as no action based on the first matter complained of can succeed in any event.
699 As to the second matter complained of (if it was available for consideration) I am not satisfied that imputation (a) was carried. The fact that Ms Dye’s work was declared to be unsatisfactory early in 2007 (Schedule C) does not, in my view, carry the more general and stronger imputation that she was incompetent. In Schedule C the mention of unsatisfactory work is raised as a matter of timing. A mere declaration that work is unsatisfactory at a particular point in time neither eliminates the prospect that work performance might be improved, nor operates as a general declaration of incompetence. Schedule D makes no mention at all of unsatisfactory work performance. I am prepared to accept that imputation (b) is carried. Schedule D contains nothing which would carry imputation (c). Schedule C (if
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proved) might provide support for imputation (c). For present purposes, I am prepared to assume that is so. However, as with the first matter complained of, none of the asserted imputations, even if all carried and all available as a foundation for the defamation proceedings, would provide a reason to grant any relief.
700 For ease of discussion, notwithstanding my findings that certain imputations were not carried, and my conclusion that the second matter complained of was not available to support the action in defamation, I shall assume that all imputations, as alleged, were carried. I shall do that because it is clear that the cause of action in defamation cannot succeed even if that was so. There are various reasons for that, each of them fatal to Ms Dye’s position.
701 The first reason is that each of the asserted imputations was, in substance, true. The second reason is that each of the statements upon which Ms Dye sued was protected by common law qualified privilege. Within the scope of operation of that privilege, each of the statements was a legitimate reply to attack. The third reason is that the defence of common law qualified privilege was not defeated by malice. I am satisfied, on the contrary, that the statements were not maliciously made, in contradistinction to Ms Dye’s own allegations. Elaboration of some of those propositions follows.
Truth
702 The imputations alleged were, if carried, in fact true. There is no need here to repeat the factual findings already made. This defence is clearly established. It defeats the action in defamation.
Privileged occasion
703 Because it was not proved that the statements set out in Schedule C were actually made orally by Ms Chapman to an identified person it is not necessary to give further attention to Schedule C. Schedule B contains an alleged republication of statements made in Schedules A and D. It is to those statements that attention must first be given.
704 Schedule A was published to General Managers, Executive General Managers and Group Executives as at 16 April 2008. It followed a rapid escalation in publicity where The Daily Telegraph had published sensational, and highly scandalous, allegations against Mr
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Blomfield and Mr Patterson. The allegations were of a character that necessarily damaged their reputations and professional standing. The allegations were published in circumstances where each had left the bank, but not for any reason connected with the allegations, and in circumstances which might have been far from obvious to readers of The Daily Telegraph, or even employees of CBA and its subsidiaries. The bank was directly involved in the allegations made. Mr Blomfield and Mr Patterson were each identified as senior executives of the bank. It was inevitable that the allegations, given their lurid nature, would draw attention to the bank as well as the two men. In addition, it was inevitable that sensational allegations of this character, splashed across the pages of a tabloid newspaper, would excite interest, attention and speculation amongst employees of CBA, its subsidiaries and other organisations, from top to bottom.
705 In my view, CBA had a clear interest in publishing to its employees and those of its subsidiaries, and to the media, the conclusions reached in the investigations which had been conducted if it wished to do so. It was entitled to state a position about the views formed, so far as Ms Dye had revealed her accusations and thereby provided an opportunity for investigation. It was entitled to say that the conclusion had been reached that the allegations were unfounded, even if that suggested they were false. It was entitled to point out that the allegations had been made after Ms Dye’s work performance had come under question and been found unsatisfactory. It was entitled to declare that it would support Mr Blomfield and Mr Patterson in any attempt to clear their names or restore their reputations. It was entitled to say that it was “extremely disappointed that it appears that Ms Dye has chosen to fight this issue in the media”, even if that suggested that she (whether directly or indirectly) had “wrongly leaked information to the media”. CBA had a clear interest in its own right in making statements of that kind to its own employees, to employees of its subsidiaries, to other organisations, to the media and to the general public. It also had a clear interest, if it wished to do so, to publicly indicate its support for Mr Blomfield and Mr Patterson. The statements made against them by Ms Dye are fairly described as vicious. The inevitable damage to them personally and professionally was enormous. There is adequate evidence of it in the present case. It seems to me from the evidence in the present case that the damage was either calculated or Ms Dye was indifferent to the harm she caused.
706 Those to whom CBA and Ms Chapman, communicated the matters in Schedule A had, in my view, a corresponding and clear interest in receiving a statement about CBA’s
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response to the published allegations. CBA did not fire the first shot in this dirty war, that was done by Ms Dye and her advisors. The response made by CBA, in sharp contradistinction to the allegations made by Ms Dye, was moderate, reasonable and, in my view, beyond sensible criticism.
707 I see no basis for any suggestion of malice on the part of CBA or Ms Chapman so far as Schedule A is concerned, although there is ample evidence of malice on the part of Ms Dye towards Mr Blomfield, Mr Patterson and the bank.
708 In my view, the defence of Schedule A as privileged at common law is overwhelmingly established.
709 My conclusions about Schedule D are very similar. At the time of this statement by Ms Chapman to senior levels of CBA, the publicity and sensation had not yet reached their zenith and, correspondingly, the statements made in Schedule D are less developed than in Schedule A. There is no reference to Ms Dye’s work performance. There is a restrained statement that the allegations were viewed by CBA as unfounded, following investigation, and that it was disappointing the matter was being ventilated in the media.
710 At this stage, allegations against Mr Patterson were a very pale reflection of what was to be published within a matter of days. It is also true that there had been only limited investigation (or opportunity for investigation) of allegations against him. Nevertheless, all the conclusions stated earlier about Schedule A apply. Schedule D, in my view, was privileged at common law. There was no malice in Ms Chapman’s email of 14 April 2008. The defence is established.
711 Insofar as Schedule B might represent a republication of the privileged communications in Schedules A and D, it also is beyond attack.
Reply to attack
712 Apart from the essential truth of its contents and the fact that it was published on an occasion protected generally by common law privilege, Schedule A was also privileged at common law for reasons which include the fact that it was a reply to an attack which extended to the bank and included those whose interests the bank was entitled to protect also.
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713 Publication of Ms Dye’s allegations against Mr Blomfield and Mr Patterson, and the published assertion of their connection with CBA as senior executives, enlivened a right of reply to those likely to have read the material published. The reply could lawfully be vigorous although, in my view, in this case it was not. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Starke J stated the principle in these terms (at 515):
A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion.
714 In the present case, CBA had an interest which entitled it to protect the reputation of its senior executives as well as its own (see e.g. Penton v Calwell (1945) 70 CLR 219 per Latham CJ and Williams J at 243).
715 The occasion for a defence of qualified privilege of common law was identified by the NSW Court of Appeal in Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; (2011) 279 ALR 183 at [106]:
The defence of qualified privilege at common law is available in respect of the publication of statements which are false in fact, and injurious to the character of another if “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned”: Toogood v Spyring [1834] 149 ER 1044 (at 1050–10510) per Parke B.
716 CBA was clearly entitled, in my view, to reply privately and publicly to the newspapers which had published Ms Dye’s allegations, to the general public which might have read those published allegations, and to its own staff and others in the finance industry who might have become aware of those allegations. It was entitled to do so in its own interests and by way of a statement of support for Mr Patterson and Mr Blomfield whose conduct and reputations had been impugned.
717 It may not be said that CBA or Ms Chapman replied without responsible enquiry. The reply was in responsible and moderate terms. The response was, debating points aside, true. It has been completely vindicated by the evidence in the present proceedings.
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Malice
718 Ms Dye has fallen so far short of establishing malice, a matter about which she bears the onus, that it is scarcely necessary to discuss that question at all. The observations of Gaudron, McHugh and Gummow JJ in Roberts v Bass (2002) 212 CLR 1 at [76] state the relevant legal principles. The case about malice rose no higher than assertions, not based on the evidence, that some statements made by Ms Chapman were not true. Finally this accusation came to be focussed, as it did in the case of statements made by Mr Norris, upon the proposition that CBA had not (and nor had Ms Chapman or Mr Norris in particular) investigated, or adequately or promptly investigated (as it claimed) Ms Dye’s allegations. The submission cannot survive the observations in Roberts v Bass at [87] and at [96]–[99]. Nor can it survive the following statement at [104]:
104 Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey, Jordan CJ said:
“It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla: Oldfield v Keogh. Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether.”
(Footnotes omitted)
DAMAGES
719 I have already, when discussing particular causes of action, indicated where necessary why no damages would be available to Ms Dye, apart altogether from the fact that the necessary factual and legal elements of her chosen causes of action were not in any instance made out. Failure to do so means that no occasion arises to consider damages. In the case of some claims (apart from sexual harassment), any claim for damages would fail in any event because Ms Dye did not, and could not, make the necessary causal connection between even her pleaded allegations and responsibility on the part of the respondents for loss or damage.
720 Nevertheless, I shall indicate again, at least in a summary way, why no occasion at all arises to even enter the territory of assessing damage or compensation.
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721 The first reason is a general one of principle. There is no basis upon which such a discussion could responsibly commence, given the factual findings I have made. The exercise would be not only speculative; it would require speculation, and choices amongst speculative possibilities, for which there is no support in the evidence as I have assessed it.
722 I will, nevertheless, attempt some discussion of how, in principle, the question of damages under particular causes of action would need to be approached, although the discussion is, in the circumstances, academic. It is convenient, in this respect, to make a distinction amongst damages for four different reasons: compensation for sexual harassment, damages or compensation for injury of some sort; economic loss; and damages for loss of reputation.
Compensation for sexual harassment
723 In her claim to HREOC, before she sought to rely upon actions for defamation, injurious falsehood, breach of contract and various actions for misleading or deceptive conduct, Ms Dye’s claim was quantified, for sexual harassment and sex discrimination alone, at $1,125,000. Had Ms Dye made out a case that she had been sexually harassed then it would have been necessary to assess an appropriate level of compensation as a result. That level of compensation would necessarily have depended upon the nature and extent of the sexual harassment proved. It is not possible to give further consideration to this particular aspect, in the light of my earlier findings that no aspect of this cause of action, nor of sex discrimination, has been established, beyond pointing out again that CommSec could not have been held vicariously liable for the bulk of the conduct asserted, if at all. Damages would, at best, have been a fraction of any amount in contemplation.
Damages or compensation for injury
724 At the heart of Ms Dye’s case for compensation for sexual harassment, and imbedded in it with respect to other causes of action, was the proposition that she had been psychologically damaged by treatment to which she had been subjected for which, in the Federal Court proceedings, one or more of the respondents to these proceedings was liable. The case for compensation or damages in this area depended entirely upon the evidence from Ms Dye’s treating practitioners. It could not survive the findings made to the effect that none of the respondents in the Federal Court proceedings bear any liability towards Ms Dye for
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sexual harassment or any other form of adverse treatment. In any event, the evidence presented on her behalf conveys a very different picture from that asserted on her behalf. It would provide an unsound foundation for the award of damages.
725 During 2006, if she required medical attention, Ms Dye generally saw a doctor in the Observatory Tower Medical Centre in Kent Street, Sydney. Usually it was Dr Grewal. At one point she sought assistance at the St Vincent’s Hospital when she cut her head after fainting at work. Late in 2006, in response to her developing anxiety, Dr Grewal referred Ms Dye to Dr Parmegiani, a psychiatrist. Ms Dye did not see Dr Parmegiani at that stage. However Ms Dye did go to see Dr Parmegiani after Mr Mason’s fair treatment review had been determined unfavourably to her. She first saw Dr Parmegiani on 11 April 2007. She saw him on a number of occasions between then and the production of his first report on 22 May 2007. Dr Parmegiani became Ms Dye’s treating psychiatrist. He was not an independent expert who examined her only for the purpose of the present proceedings. Dr Parmegiani proceeded by accepting what Ms Dye told him was true. He had no occasion, and no means, to attempt to verify her statements independently. That is not a criticism of him but it means that Dr Parmegiani’s assessment of Ms Dye is inextricably linked with the version of events which she gave. If that version of events is falsified any opinion which Dr Parmegiani offered must be adjusted as a result. In the present case, there was no professional opinion offered by Dr Parmegiani which remained relevant. The foundation for Dr Parmegiani’s opinions was removed. Nevertheless some things emerged from the history which Dr Parmegiani took which are of significance for the present proceedings. Particularly is that so where the history taken by Dr Parmegiani was inconsistent with the version of events given by Ms Dye in the present proceedings.
726 Dr Parmegiani recorded in his first report dated 22 May 2007 that Ms Dye stated to him, that after the incident with Mr Patterson which resulted in his apology on 30 June 2006, she developed a “close friendship” with Mr Blomfield. At this time Ms Dye described Mr Blomfield as being a mentor. Dr Parmegiani recorded what he was told by Ms Dye about Mr Blomfield as follows:
Ms Dye stated she subsequently developed a close friendship with the above- mentioned mentor (Michael), who however later signalled his own interests in establishing a personal relationship with Ms Dye. After further discussion, the matter appeared to be resolved satisfactorily (by a mutual decision not to pursue a personal relationship), and Ms Dye spoke to Michael and obtained a position in the newly
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formed business unit headed by Michael, where she began working in November 2006.
Having started to work in the business unit however, Ms Dye felt increasingly ignored or ostracised by Michael, leading to further discussion/clarification between them. At this point she was instructed to report to a different manager (Arnie), and was given the task of performing a complex restructuring process, which she carried out in early 2007, working very long hours, and receiving very limited assistance from her superiors.
In February 2007 she was approached by her boss Arnie, allegedly to discuss some shortcomings in her performance, and his concerns that she “did not fit in with the specific culture of the business unit”. He also stated to her that she had already given her one formal warning about he [sic] behaviour (which she denied had previously happened), and foreshadowed the possibility of her being placed on a performance management programme.
Having failed to further clarify her position and the complaints with Michael, and suffering from overwhelming symptoms of anxiety and distress, Ms Dye went on stress leave approximately five weeks before consulting with me.
727 There are aspects of this account which were unreliable but that is not immediately to the point. Most important, for present purposes, is the fact that there was no allegation that Ms Dye was sexually harassed by Mr Blomfield. Ms Dye’s stated distress was due to the fact that she did not receive enough attention from Mr Blomfield after she began working in LBB (i.e. well after both 15 June and 8 August 2006) and due to the fact that she was anxious and distressed by her treatment from Mr Selvarajah. Dr Parmegiani said in this report of 22 May 2007:
Over the past five weeks I have been able to detect a marked improvement in Ms Dye’s symptoms, which I now consider to have fully resolved.
With respect to prognosis I would consider this to be favourable, and I believe that she is now able to return to her pre-injury duties. I do however strongly recommend that prior to resumption of her duties all efforts should be made to resolve the interpersonal issues between Ms Dye and her managers that have resulted in the emergence of her recent symptoms. Failure to do so may strongly encourage the recurrence of such symptoms, even in the presence of ongoing treatment in the form of antidepressant medications and counselling/psychotherapy.
728 There was no mention in this report of the fact that the circumstances had been reviewed by Mr Mason and Ms Dye’s position had not been vindicated. Notwithstanding Dr Parmegiani’s diagnosis that Ms Dye’s symptoms had fully resolved by 22 May 2007, Ms Dye did not return to work but organised ongoing medical certificates from Dr Grewal until her entitlement to salary was completely exhausted.
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729 A further significance of Dr Parmegiani’s report of 22 May 2007, and the notes which he took, is that no complaint of any kind was made to him about the conduct of Mr Patterson. There was no allegation of sexual harassment by Mr Patterson, much less of sexual assault. Astonishingly, if Ms Dye’s complaints in the present proceedings had been true, there was no mention of the supposed assault by Mr Patterson on 13 April 2007, a date which fell between Ms Dye’s first and second appointments with Dr Parmegiani. Ms Dye told Dr Parmegiani on 11 April 2007 that she and Mr Patterson had been friends before the incident in New Zealand. She said that after the settlement on 30 June 2006 they started to become friends again. That is inconsistent with Ms Dye’s suggestion in the present proceedings that Mr Patterson was sleazy to her the whole time she knew him and inconsistent with what was said in the April 2008 published allegations.
730 Dr Parmegiani recorded that Ms Dye advised him that after 8 August 2006, when according to Ms Dye she and Mr Blomfield had both decided not to get involved with each other, she went into decline. That is consistent with Ms Dye being upset that Mr Blomfield had rejected her advances. On 26 April 2007, Ms Dye told Dr Parmegiani that she wanted and hoped for a relationship with Mr Blomfield. That is quite the opposite of the suggestion made by Ms Dye in her evidence in the present proceedings that she held Mr Blomfield off from the beginning and resisted his attempts to commence a relationship. On the contrary, it is consistent with the view to which I have come, on consideration of the whole of the evidence in the proceedings, that Ms Dye very much wished to have a personal and intimate relationship with Mr Blomfield. She demonstrated this desire on 15 June 2006. It persisted and she demonstrated it even more openly on 8 August 2006. When she was rebuffed she went into a decline. Nevertheless, apparently, all hope had not faded and after she went to work in LBB the hope remained alive sufficiently that she became very upset at the lack of interest which Mr Blomfield showed in her. This material demonstrates, apart from anything else, that Ms Dye was quite untruthful in her evidence in the present proceedings when she said she was not at all interested in Mr Blomfield.
731 Dr Parmegiani agreed that Ms Dye was devastated by Mr Selvarajah’s declared intention to more formally invoke the continuous improvement policy provisions. Dr Ronnie Zuessman, a psychologist Ms Dye saw for the purpose of the present proceedings, also said that a person with Ms Dye’s profile would find performance management difficult to cope with and would react with dismay.
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732 There is no occasion to discuss the further detail of the medical evidence. Dr Grewal and Dr Parmegiani, who were Ms Dye’s treating doctors, relied on what she told them as true, both with respect to factual matters and with respect to her feelings and symptoms. So did Dr Zuessman and Dr Anderson, a psychiatrist whom she saw at the request of the respondents. None of those practitioners could give independent evidence which gave any support to Ms Dye’s factual assertions. The symptoms she described were, at the least, as consistent with her being distressed by criticism of her work performance as with any other cause. The timing of Ms Dye’s reported symptoms appears to me to be consistent only with such matters. There is no foundation upon which to link Ms Dye’s allegations of sexual assault or sexual harassment in the present proceedings with her reported symptoms during the period of her employment.
733 In any event, none of the treating doctors assessed Ms Dye as having suffered any permanent, or even serious, psychological injury. In Dr Parmegiani’s case he thought her symptoms had resolved by May 2007. She did not choose to see him again until after her employment had come to an end. In the meantime she devoted her energies to manipulating the position to attempt to secure a workers compensation payment and then some other form of settlement or a return to work on terms which were favourable to her. In that she had the assistance of Dr Grewal but he does not appear to have given any independent thought to whether Ms Dye’s circumstances truly justified the certificates which he continued to issue at her request and in the terms suggested by her. I regard those certificates and their contents as an unreliable guide to any injury or adverse consequence for Ms Dye, then or now.
734 The medical evidence, such as it was, would therefore not have provided any foundation for a significant amount of compensation, even if Ms Dye had managed to make good some of her allegations of sexual harassment.
Damages for economic loss
735 Ms Dye did not have a demonstrated history of a capacity to obtain work as and when she pleased, even when suffering no apparent disadvantage. During the course of her employment with CommSec she made various applications for positions within and outside CommSec and the bank. Apart from her acceptance by Mr Patterson (to whom she was going to be transferred in any event) and Mr Selvarajah (as his third choice) there is no evidence that would sustain the proposition that Ms Dye easily found alternative positions.
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There is some evidence that she, generally speaking, did not secure the positions which she sought. That is a factor which must be borne in mind in assessing any allegation that her employment prospects were damaged by any conduct of the respondents.
736 The picture presented by the evidence after Ms Dye left the employment of CommSec is not really any more advantageous to her when scrutinised. She managed to secure employment at Bond University, to act as a temporary replacement to someone who had gone on maternity leave. That was a position under contract for a fixed term of approximately eight and a half months. Two months into the term of that contract Ms Dye gave it up. The reason given in evidence in the present proceedings was that she found it necessary to devote her time to the preparation of the present proceedings. I find that explanation quite unconvincing. Although there was tendered in evidence a folder of material said to represent unsuccessful applications by her for positions of various kinds, there is no reliable indication available from that material as to the reason why she was unsuccessful. In particular there is no reason to attribute that lack of success to anything that the respondents did or were perceived to have done, apart from some opinion evidence to which I will turn in a moment. Whether Ms Dye was correct to devote her time to the present proceedings is not a matter which I need decide. The more important point is that the evidence does not show that her prospects for employment have diminished as a result of anything which the respondents did or said. That is not to say that they may not have diminished, but that is a different question altogether.
737 Ms Dye’s evidence of her future economic loss was provided by Mr Adrian Kelly, a chartered accountant. I intend no criticism of Mr Kelly when I say that he did the best he could with what was available to him, which was not much. Mr Kelly calculated Ms Dye’s loss of earnings from 10 November 2007 until 30 November 2010, shortly before the date of his report, at $240,229. He calculated Ms Dye’s future economic loss (to age 65) at $3,350,839. Mr Kelly’s calculations were affected significantly by the assumption that an amount of $16,625 per annum was an appropriate figure to represent Ms Dye’s annual earning potential after 10 November 2007. Mr Kelly’s assumption was that Ms Dye was capable of earning only that amount in future. The assumption was not sound. The amount of $16,625 represented the salary earned by Ms Dye pursuant to her fixed term contract with Bond University until she gave it up. Ms Dye’s earning figures from that period have not been shown to be a true reflection of what she might, with diligence, have earned in that
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period, nor what she might earn in the future. That is no criticism of Mr Kelly but it erodes his calculations to the point when they could not have been of any assistance.
738 As his was the only relevant evidence about the matter, the result was that neither past or future economic loss was proved to an acceptable standard. That is just one more defect in Ms Dye’s case.
Loss of reputation
739 The matters to be discussed here are relevant to the last issue also. Ms Dye’s evidence about her economic loss, apart from the matters which I have mentioned, consisted principally of opinions from Mr James de Berg presented in the form of an expert report. Mr de Berg is a managing director of a recruitment company. Mr de Berg’s opinion was that Ms Dye will face great difficulties in seeking future employment. The foundation for this opinion, if it is to be given any weight at all having regard to its very general character, is important to appreciate. Mr de Berg’s opinion was not based upon the proposition that anything said or done by any of the respondents in either of the proceedings had contributed to difficulties for Ms Dye in seeking future employment. His opinion was that such difficulties would be faced by her as a result of the publicity generated by the publication of her allegations against Mr Blomfield and Mr Patterson. He confirmed in his oral evidence that that was the foundation for the views which he expressed in his report. The publication of those matters is something for which none of the respondents in either of the proceedings may be held responsible. I have expressed my view that they are matters for which Ms Dye must be held (perhaps with Mr Rochfort) responsible but the allocation of responsibility to her is, in fact, not necessary to make the present point. The point is that none of the respondents are liable for the publication of those matters. Nor may it be said on Mr de Berg’s evidence (or otherwise in my view) that anything said by CBA, by Ms Chapman or by Mr Norris as a response to those allegations would provide her with a foundation for any relief.
740 In the folder of material evidencing Ms Dye’s unsuccessful job applications, to which I referred a short time ago, were two inquiries she made in August 2008 whether “CBA’s comments to the press about my performance” were hindering (or were likely to hinder) her prospects. The responses were equivocal. Having regard to Mr de Berg’s evidence, these
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two responses are entitled to no weight. In any event, they are entirely insufficient to support any claim for damages.
Conclusion on damages
741 It was a fatal aspect of Ms Dye’s case in both proceedings, based on evidence led by her in her case, that no respectable foundation for damages or compensation was provided. In truth, the addition of a multiplicity of further pleaded causes of action to accompany the central allegation of sexual harassment, added nothing of utility to the proceedings and did not provide a foundation for any additional measure of compensation. The core question was, and would always have been, whether compensation for sexual harassment was warranted. That issue turned and would always have turned, on the question of whether sexual harassment had occurred. That part of the case is lost and no compensation is available.
COSTS
742 With few exceptions, costs in interlocutory matters have not yet been dealt with. They are either reserved or would be costs in the overall proceedings. Costs of proceedings in the Supreme Court prior to the transfer of those proceedings were awarded against Ms Dye at the time the proceedings were transferred on her application. I see no reason to interfere or amend any costs orders already made. None has been suggested.
743 Normally the other costs of the overall proceedings would follow the outcome of the proceedings in the absence of an application for some other order. To date no party has made, or foreshadowed, an application for some other order. Accordingly I shall order that the respondents’ costs of both proceedings, to the extent not already the subject of any order, be paid by the applicant, such costs to be taxed if not agreed. If any party should seek some other order concerning costs, a written application to that effect, supported by adequate written submissions must be filed and served within 14 days of this judgment. Any written response must be filed and served within a further 14 days and any reply, also in writing, within a further 7 days. No extensions of time will be granted. Applications or submissions not filed within the time allowed will be disregarded. Any application for costs will be dealt with on the papers.
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A CONCLUDING OBSERVATION
744 This litigation has imposed a very considerable burden on the respondents. I have no doubt, apart from anything else, that the legal costs incurred in this case by the respondents have been very substantial. They may or may not be recovered in whole or in part. The incentive to reach a “commercial” settlement of the proceedings must have been considerable. However, the costs incurred, and other burdens assumed, by the respondents could not have been avoided if the truth was to emerge. The bank and CommSec have shown great loyalty to Mr Blomfield and Mr Patterson in pursuing that objective.
I certify that the preceding seven hundred and forty-four (744) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.
Associate:
Dated: 16 March 2012