Gmitrovic v Commonwealth of Australia - [2016] NSWSC 418 - NSWSC 2016 case summary — Zoe

NSWNSWSC

Gmitrovic v Commonwealth of Australia

[2016] NSWSC 418

Supreme Court of NSW|2016-04-05|Before: Adamson J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-04-05

Before

Adamson J

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

Solicitors: Sparke Helmore Lawyers (Defendants) File Number(s): 2014/325942

[2]

Introduction

Darko Gmitrovic, the plaintiff, commenced proceedings against the Commonwealth of Australia (incorrectly referred to as the Department of Defence) and Danielle Pokoney by statement of claim filed on 5 November 2014. The plaintiff claimed damages for defamation arising from the sending of two documents - an Intent to Sanction Minute and a Statement of Reasons (the matter complained of) - concerning disciplinary action taken in the course of his employment at the Department of Defence.
As the earliest of the emails said to be actionable was sent on 3 July 2013, the plaintiff required an extension of time pursuant to s 56A of the Limitation Act 1969 (NSW), which relevantly provides that defamation proceedings are to be commenced within twelve months. The plaintiff filed a notice of motion for such an extension on 5 November 2014, being the date on which he filed the statement of claim.
The issues that require determination are: 1. Whether an extension of the limitation period ought be ordered pursuant to s 56A of the Limitation Act 1969 (NSW) or whether the plaintiff's cause of action in defamation is time-barred pursuant to s 14B of the Limitation Act; 2. Whether the pleaded imputations were conveyed by the matter complained of; 3. Whether the imputations found to have been conveyed were defamatory; 4. Whether the defence of qualified privilege applies; 5. The assessment of damages.

[7]

The notice of investigation in August 2012

On 23 August 2012 Ms Pokoney instructed Ms Mahoney to "proceed to NOI [notice of investigation]". Ms Mahoney prepared a minute addressed to the plaintiff, entitled: "NOTIFICATION OF COMMENCEMENT OF INVESTIGATION INTO SUSPECTED MISCONDUCT". The minute was reviewed by Ms Pokoney, signed by Ms Stores (in Ms Pokoney's absence) on 27 August 2012 and sent to the plaintiff on that day by email from Ms Mahoney.
The minute advised the plaintiff of the investigation into his conduct; the nature of the allegations (inappropriate use of ICT resources); the identity of the case officer; the potential consequences of a finding of misconduct; the fact that Mr Robertson would receive a copy of the minute and be notified of developments; and that the investigation was confidential. In the final paragraph of the minute, Ms Stores also encouraged the plaintiff to use the Employee Assistance Program if the matter caused him "undue distress".
The minute was copied "for information" to Keith Robertson. Mr Robertson was then the Regional Estate Development Manager of Defence Support Northern NSW and was, relevantly, the plaintiff's first line manager. Ms Pokoney explained the reasons for the minute being sent to Mr Robertson in the following terms in her examination in chief: "Q. Why would you send a document of this kind to him? A. Well, there's a number of reasons. Firstly, because the referral came from our ICT area, Mr Gmitrovic's work area would not have been aware, as far as we were concerned, that there was an investigation commencing. So there's the visibility of the investigation. It was also to notify Mr Robertson that one of his employees is undergoing this process, so there's a duty of care aspect, because it can be a stressful process we understand, but most of all its visibility, so that he's aware."
Ms Mahoney explained Mr Robertson's need to know in the following way: "It's very important that the chain of command within Defence, they have a protocol that their chain of command needs to be aware if there's any employees going through misconduct. Also the other thing is to let that person know that if they could provide support to the employee as well, because often sometimes there could be changes once a person has received notification, that they need support."

[8]

The notification of suspected misconduct in November 2012

Ms Mahoney prepared a notification of suspected misconduct which was signed by Ms Pokoney and sent to the plaintiff on 28 November 2012. In the course of its preparation Ms Mahoney consulted with the members of staff of ICT who had referred the matter to the Conduct, Performance and Probation branch because she needed their technical assistance to formulate the allegations to be made against the plaintiff.
The notification informed the plaintiff of the allegations against him and the relevant provisions of the Australian Public Service (APS) Code of Conduct. The allegations included the following: "a. between January 2012 and May 2012, you have accessed non-work related Internet sites excessively, averaging up to 1822 website visits per day (note this number contains multiple visits to the one site) (refer attachment c). b. you downloaded/uploaded unapproved software onto the DRN called an Anonymizer to conduct and mask your Internet search activities (refer attachment c). c. you have deliberately used an Anonymizer to hide a number of your Internet search activities, therefore bypassing Defence Network security tools. The risk posed to the DRN by your actions in allowing you to transmit and receive unsolicited data is significant."
The notification also informed the plaintiff that Ms Pokoney had been appointed delegate. Ms Pokoney described the role of the delegate in this context as follows in cross-examination: "The main task of a delegate is to decide, based on the evidence in relation to a code of conduct investigation, is to review the evidence and make an assessment based on the balance of probabilities, if a breach of the APS code of conduct has or has not occurred and if it is determined that one has occurred, to determine whether or not a sanction is warranted for those breaches."
The notification was also sent to Mr Robertson, for the same reasons as given above with respect to the notice of investigation.
On 12 December 2012 the plaintiff sent an email to Ms Mahoney in the following terms: "Only email communication please. I want to have a record of every communication with you."

[10]

Consultations from February to June 2013 between Ms Pokoney and ICT regarding the wording of a reply to the plaintiff's response

When Ms Pokoney reviewed his response, she realised that she needed to consult ICT, as neither she nor Ms Mahoney had sufficient technical expertise to assess his response without expert assistance.
To that end Ms Pokoney and Ms Mahoney met with Mr Harrison-Brown and Mr James (the authors of the minute referring the matter for review by the Conduct Performance and Probation branch) on about 8 February 2013 to discuss technical matters. After the meeting, Ms Pokoney formulated questions for advice which she sent to Mr Harrison-Brown and Mr James by email on 14 February 2013 after seeking advice from Ms Mahoney as to whether she had "captured the required questions".
Ms Pokoney's email of 14 February 2013 said in part: "In what is primarily a technical based investigation, I am relying on your expert advice on the best way to approach Mr Gmitrovic's response to the Notification of Suspected Misconduct. Mr Gmitrovic has attempted to discredit the allegations presented to him and has attempted to discredit the evidence that was also presented to him and I am unable at this stage, to ascertain whether or not there is any validity to Mr Gmitrovic's claims - I am therefore seeking your assistance. As the Department's ITC Security Operations team, I am very grateful for your specialist advice and guidance on how best I can address (and respond to) Mr Gmitrovic's comments. I have tried to compartmentalise the comments below, to assist you to see where my questions fit against Mr Gmitrovic's specific comments and subsequently respond from your expert perspective."
On 19 March 2013, Ms Pokoney, who had not received a response to her email of 14 February 2013, sent a further email requesting a response. Shortly after her email was sent, Ms Pokoney received a reply from Carolyn Bolling, a Principal ICT Security Officer, foreshadowing an imminent response. This was the first occasion on which Ms Pokoney had had any contact with Ms Bolling regarding the matter. Eventually, on 29 April 2013, Ms Bolling sent a response by email to Ms Pokoney (copied to Mr Harrison-Brown) which set out her proposed wording of the response, which was highlighted in maroon on the draft.
In early May Ms Pokoney and Ms Mahoney met with Ms Bolling and Mr Harrison-Brown about the wording of Ms Pokoney's "breach finding decision". By email dated 14 May 2013 Ms Pokoney sent them her draft decision for their review of the technical matters contained in it.
By email sent on 31 May 2013, Ms Bolling responded with suggested tracked changes to the draft decision. In early June there were further communications between them about wording and applicable protocols.

[11]

The delegate's decision on 6 June 2013

On 6 June 2013, Ms Pokoney, as the delegate of the Secretary, made a decision that the plaintiff had breached certain provisions of the APS Code of Conduct (the Decision). In a 19-page document she set out the allegations, the plaintiff's response and her findings. She wrote the Decision herself, after taking into account the contribution made by ICT. The Decision concluded as follows: "Given that even after reviewing the evidence available to him in relation to this matter, which included the Internet logs, I am of the view that the sternest of sanctions may be warranted as Mr Gmitrovic has displayed no level of appreciation for his actions and their potential ramifications. Furthermore, I note that Mr Gmitrovic has chosen to approach his response to the NOSM with arrogance and condescension. This is extremely disappointing, particularly given the advice I have received from out ICT Security expert staff and the fact that this matter was referred by our ICT Security experts (initiated by their detection of anonymizer usage). As such, and in considering all the facts of this matter, I am of the view that the termination of Mr Gmitrovic's employment is a sanction to propose commensurate to the seriousness of the misconduct."
After she had made the Decision, Ms Pokoney instructed Ms Mahoney to use the Decision to prepare a draft Intent to Sanction Minute. Ms Pokoney explained the relationship between the Decision, the Intent to Sanction and the Statement of Reasons as follows: "Q. Can you just tell us this, what's the difference between the delegate's decision and the intent to sanction? A. The delegate's decision is essentially just articulating my decision in respect to the breaches of the APS Code of Conduct and the evidence, and the intent to sanction has a minute covering sheet, it is essentially a template but it talks about the background and the elements of the code that have been breached and that sort of thing, and then it has a statement of reasons attached. Q. What does the statement of reasons draw on? A. From the delegate's decision. Q. Is it fair to say that they will usually have quite a close correspondence? A. Yes."

[12]

The Intent to Sanction Minute dated 3 July 2013

The draft of the Intent to Sanction Minute passed from Ms Pokoney to Ms Mahoney several times before it was ultimately settled by Ms Pokoney, who signed it as delegate on 3 July 2015 and forwarded it by email to Ms Mahoney so that she would, in her role as case officer, send it to the plaintiff and copy it to Mr Robertson. When Ms Mahoney received the final, signed version of the Intent to Sanction Minute she was already familiar with its contents, having regard to the collaborative way in which it had been prepared.
The covering email from Ms Pokoney to Ms Mahoney (to which the Intent to Sanction was attached) included the following: "This is a great one to get out."
Ms Pokoney explained her choice of words in examination in chief: "Because it had taken so long to get to a point where a decision had been made and we could communicate that to Mr Gmitrovic. I was glad to get it out."
Ms Mahoney understood these words as follows: "That he [it, the investigation] had been going for a substantial period of time and it was good to have a finalisation."
The Intent to Sanction Minute was marked "Staff in Confidence". Ms Pokoney gave evidence of her understanding of what the expression, "Staff in Confidence", meant as follows: "My understanding is that it's the need to know principle."
Ms Pokoney clarified her evidence by explaining that her understanding of the term was that it was up to the recipient to determine whether others had "a need to know". A recipient would not need to revert to the original sender to obtain permission before making the judgment whether those to whom he or she wanted to send the document had a "need to know". The original sender would have no control over whether a recipient passed on the information to others who might be adjudged to have a need to know.
Ms Mahoney drafted the Statement of Reasons from the notification of misconduct and the Decision. It was settled by Ms Pokoney.
On 9 July 2013 Ms Mahoney emailed the Intent to Sanction Minute and the Statement of Reasons to the plaintiff, and emailed the Intent to Sanction Minute to Mr Robertson. Ms Pokoney explained why the Intent to Sanction Minute was sent to Mr Robertson in her examination in chief as follows: "Q. Did the nature of the sanction that you were proposing also have any effect on whether he needed to be informed? A. Absolutely. Q. Can you explain why? A. Because I was proposing the termination of Mr Gmitrovic's employment, that's an employee under Mr Robertson's supervisory function, so essentially if Mr Gmitrovic was to be terminated from this point, Mr Robertson would have a clear need to know about that, in my view. Q. Was it standard for an intent to sanction to go to a first line supervisor? A. Yes. Q. What part of the intent to sanction did you understand would be provided to the supervisor? A. The covering minute. Q. Did you have any understanding about whether the statement of reasons would go to the supervisor? A. Typically they're not provided to the supervisor."
Ms Mahoney also confirmed her understanding of the protocol: that the Statement of Reasons is not provided to the person's supervisor.
That day, 9 July 2013, Mr Robertson forwarded the Intent to Sanction Minute to Kathy Shields, his first line supervisor (and the plaintiff's second line supervisor). At that time Ms Shields was the Director of Estate and Facilities Service in Defence Support, Northern New South Wales Group. Ms Shields explained why she expected to be told of the Intent to Sanction Minute in the following passage from her evidence in chief: "Q. Would you in ordinary circumstances expect to be informed of the existence and progress of an investigation into a person for whom you are the second line supervisor? A. Yes. Q. This may be obvious, but why is that? A. The department expects first line and second line supervisors to manage the teams day to day, deliver the work outcomes, but also make sure that general day to day HR matters are taken care of on an individual's behalf, or as a delegate on some of the individual staff supervisory arrangements, so this would be classed as some sort of personnel manager related to individuals, so the department would normally expect as part of routine business practice that we would either be involved or aware of it as it was a member of the team that we - who worked for us."
Ms Shields also explained that, as the plaintiff's second line supervisor, she was the person who was ultimately responsible for making a final determination whether a pay or salary progression would take place.
Ms Shields, in turn, forwarded the Intent to Sanction Minute by email dated 9 July 2013 to Peter McLenaghan and Kellie Naylor, who both had expertise in human resources so that she could be appropriately advised as to how to deal with the plaintiff. Ms Shield's explained that because it was not a "standard" Human Resources matter, it was outside her expertise and that of Mr Robertson. She wanted more detailed guidance as to what she and Mr Robertson ought do next as managers and supervisors.
At that time, Mr McLenaghan worked in Ms Shields' business unit (Defence Support, Northern New South Wales) as the Human Resources expert. Ms Naylor was part of a shared services Human Resources team (known as the Personnel Services Support team) within the Department of Defence.

[14]

The Determination of Sanction: 29 August 2013

On 29 August 2013 Ms Pokoney issued a Determination of Sanction which had the effect of terminating the plaintiff's employment with the Department of Defence on 2 September 2013. She drafted it herself but consulted with Ms Mahoney in the course of the process. It was sent to the plaintiff and also to Mr Robertson.
On 3 September 2013 Ms Mahoney drafted a minute of termination of the plaintiff's employment and sent it to the relevant section of the Department of Defence so that it could be notified in the Government Gazette.
On 3 September 2013, the plaintiff rang Centrelink and applied for a Newstart allowance. He filled in a customer declaration on 10 September 2013 which required him to specify the reason for "separation" (termination). As the information as to the reason for his separation was not forthcoming, his claim for Centrelink benefits was rejected. Ultimately there was a phone hook-up between the plaintiff, a Centrelink officer and Ms Mahoney, in the course of which Ms Mahoney confirmed that the plaintiff's employment had been terminated as a result of misconduct. The plaintiff subsequently provided the Determination of Sanction document to Centrelink.
The employment separation certificate was provided to Centrelink on 23 September 2013. Once it was received, Centrelink informed the plaintiff that he would not be entitled to receive the Newstart allowance until 16 November 2013, to allow for an eight-week income maintenance period. The Centrelink documents in evidence record that: "A decision has been made to stop your Newstart Allowance from 26 September 2013 until 15 November 2013 because your income is too high. This is because we are taking into account money you have received for a redundancy payment and/ or unused leave entitlements (for example, annual leave and long service leave)."
After receiving this information, the plaintiff decided to apply for a carer payment and allowance instead. When filling in the claim form, the plaintiff represented that he provided additional care to his mother because of her disability or medical condition; that he provided this care seven days a week; and that he had started to provide the care in January 2009. The plaintiff signed and dated the claim form 22 October 2013. He represented, in support of the claim, that he provided personal care to his mother for at least the equivalent of a working day, each day. As a result, the plaintiff received a carer's payment and allowance from 15 October 2013.

[15]

Proceedings in the Fair Work Commission

In about September 2013 the plaintiff consulted a solicitor, Mr McArdle, who advised him about making an application to the Fair Work Commission (the Commission). On 20 September 2013 the plaintiff applied to the Commission for an unfair dismissal remedy for the termination of his employment with the Commonwealth. Although Mr McArdle was initially on the record as the plaintiff's solicitor in those proceedings, he ceased to act at a relatively early stage. The plaintiff represented himself in those proceedings thereafter.
The plaintiff tendered, in evidence in the present proceedings, Ms Pokoney's witness statement dated 3 February 2014 from the proceedings in the Commission, to which were annexed several documents, many of which are also in evidence in these proceedings. The plaintiff's application in the Commission was heard over two days: 5 and 7 March 2014. On 13 June 2014 Senior Deputy President Hamberger found that the plaintiff's dismissal was harsh, unjust and unreasonable.
There was a further hearing in the Commission on 10 July 2014 for the purpose of hearing evidence and argument on an appropriate remedy. The transcript of the hearing on that day indicated that the hearing took about twenty minutes. In the course of the hearing, the Senior Deputy President asked questions, which the plaintiff answered as follows: "Q. Have you sought any paid employment since your dismissal? A. I actually did have intentions but my mother's illness did not allow me the time as I had to commit to her as well. Q. What's the answer? You're saying the answer is no you haven't sought any paid employment? A. Yes."
The plaintiff admitted in the hearing in the Commission that he would probably have become a full-time carer for his mother at some time and expected to remain in that role until her death.
On 31 July 2014 Senior Deputy President Hamberger delivered reasons for his decision to award compensation equivalent to 16 weeks' salary (less deductions for failure to mitigate) of $22,798.08.
On 12 August 2014 the plaintiff wrote to the Department of Defence and sought $1.7m in compensation.
In late October 2014 the plaintiff consulted lawyers for the first time with a view to obtaining advice about suing the Commonwealth for damages for defamation.
By the time the plaintiff filed the statement of claim in these proceedings on 5 November 2014 he realised that he needed an extension of time. Accordingly, he filed a notice of motion on the same date seeking an extension of time.
In his notice of motion (which has been admitted as forming part of his evidence), the plaintiff said: "Given the severity of allegations and imputations, which included that I was dishonest and may have been acting treacherously by sending information over the internet, I found it unreasonable to claim defamation unless I first prove that the allegations are false. Favourable FWC [Fair Work Commission] decision was published on 13 June 2014, and the final remedy session was held on 10 July 2014. . . . "As a primary carer I simply had neither the financial resources nor time to prepare two legally different cases at the same time as that requires the time to study and understand the laws I have never had to consider before in my life. I also felt important to address it in FWC both due to short time frame for submission to FWC after dismissal, and because I felt that I need to prove the whole case being a shamble and a disgrace. In my opinion this is a simple and clear matter of an unprovoked attack on my integrity and reputation, and I would like to request the extension of time to submit by Statement of Claim based on my reasons above."

[16]

The limitation issue

Section 14B of the Limitation Act provides that a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of. The matter complained of was first published on 3 July 2013. Accordingly, the limitation period expired on 2 July 2014. The proceedings were not commenced until 5 November 2014. The plaintiff requires an extension of time under s 56A to that date if the proceedings are to be maintainable.
Section 56A of the Limitation Act provides: "Extension of limitation period by court (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."
In his email of 26 July 2013 the plaintiff expressed his intention to "vigorously pursue all legal options" and "clear [his] name of imputations". I do not accept the plaintiff's denial that he was not at that time thinking of defamation proceedings in light of the language of the email and his admission that, as at that time, he "knew" that he had been defamed. However, the plaintiff did not consult a lawyer to advise him about suing for damages for defamation until about late October 2014.
Mr Richardson of counsel, who appeared on behalf of the defendants, put to the plaintiff in cross-examination that he could have commenced defamation proceedings at any time in 2013 or 2014 after publication of the matter complained of. The plaintiff said: "I could not because I did not have the time to allocate to that because I was already at the Fair Work Commission and I was jobless, I had no money and I had to care of my mother, so I had enough on my plate as it was to dedicate myself to another concurrent legal case. I just didn't have the power, power for that."
The plaintiff admitted that the preparation of his statement of claim in the present proceedings took a couple of days. He said that he had to choose what to do first: bring a claim in the Commission, or commence his defamation proceedings. He said that he did not commence the defamation proceedings because he did not have "the time and the money". He appreciated that a claim in the Commission had to be brought within 30 days of the date of dismissal. At that time he did not realise that there was a time limit on the bringing of defamation proceedings and did not check the law to ascertain whether there was any such limit.
The plaintiff admitted that there was nothing stopping him from commencing defamation proceedings in the period from mid-June 2014 until 5 November 2014 when he in fact commenced the proceedings.
I do not accept that the plaintiff was not contemplating defamation proceedings when he sent the email of 26 July 2013; the language is apt to the cause of action. The word "imputation" is one which is particularly apposite to the tort; as is the reference to reputation.
The burden imposed on the plaintiff by s 56A of the Limitation Act is that he is required to establish that it was not reasonable for him to commence proceedings within the first year of publication.
I am satisfied that, had the plaintiff appreciated that there was a time limit, he would have given sufficient priority to filing the statement of claim, notwithstanding his other commitments to his mother or to the commencement, preparation for and conduct of the proceedings in the Commission. His ignorance of the time limit does not mean that it was not reasonable for him to commence proceedings within the first year of publication: see the summary of principles in Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 at [19]-[23] per Keane JA. He became aware of the publication on 9 July 2013. It took him about two days to draft the statement of claim. Even if he had been so caught up in the Commission proceedings until he succeeded on liability on 13 June 2014, there was still time within which to draft the defamation proceedings before the year was up.
The time limit in s 14B and the terms of s 56A do not have the effect of permitting potential plaintiffs not to inform themselves of the applicable time limit or to give priority to other demands on their time. In my view, the plaintiff took his time to commence defamation proceedings because he did not appreciate that there was a time limit. Had he investigated whether there was a limitation period he would have discovered that there was and found the time before the year was up to draft the statement of claim.
In my view, the plaintiff has not discharged the burden of proving that it was not reasonable for him to commence proceedings within the year. Accordingly, his cause of action in defamation is not maintainable and there must be judgment entered for the defendants.
However, for completeness, I am obliged to make all relevant findings of fact and law, having heard the matter as trial judge.

[19]

The Intent to Sanction Minute ". . . Breach of the APS Code of Conduct 2. An investigation was undertaken into allegations that you had inappropriately used the Defence Restricted Network (DRN), specifically by accessing anonymous search engines (Anonymizers) to hide your search activities and excessively using the Internet. Upon review of the material provided to me in relation to this matter, including your response to the Notification of Suspected Misconduct, as Delegate of the Secretary, I have determined that you have breached the Code. I have attached a statement of reasons supporting my decision (see Attachment A). 3. Having consideration to your actions, your role within the organisation and the obligations under the established Defence ICT policies; I have determined that you have breached the following specific elements of the Code contained within Section 13 of the Public Service Act 1999 (the Act): [provisions identified] … 6. After reviewing the evidence and information/advice available to me in relation to this matter, I am of the view that the sternest of sanctions may be warranted, particularly as you have not displayed any level of appreciation for you [sic] actions or the potential ramifications of your actions. 7. Furthermore, I note that you have chosen to approach your response to the NOSM with a sense of arrogance and condescension. This is extremely disappointing, particularly given the advice I have received from ICT Security Operations (our ICT technical experts), and the fact that this matter was referred to CPP by the Department's ICT Security Operations Directorate (as this matter was initiated by their detection of your anonymizer use). 8. I feel the sanction that I propose must communicate the seriousness with which the Department views your actions and address the significant risk your actions have posed to the Defence Restricted Network. The sanctions must also be stern enough to clearly articulate the seriousness of this process and the fundamental need for you to respect, understand and most importantly comply, with departmental requirements. 9. I also feel that the sanction must communicate to the broader Department that such behaviour is not acceptable and will not be tolerated by the Department of Defence. As such, and in considering all the facts of this matter, I am presently of the view that the termination of your employment is commensurate to the seriousness of the misconduct and is therefore the appropriate sanction to propose. Opportunity to Comment on Sanction 10. Before I make a final decision, subject to any comment you might wish to make, I seek your comments on the following issues: b. whether a sanction is warranted in this matter; and/or c. the level of sanction that should apply; and/or d. any mitigating circumstances that should be considered; and/or e. any other matters(s) that you consider relevant to the imposition of a sanction."

[20]

The Statement of Reasons ". . . Reasons(s) 6. My reasons are: a. I note that you spent much of your response to the NOSM [Notice of Suspected Misconduct] questioning the evidence that I have received and have relied upon. Whilst I appreciate that the 1822 average figure appears to be incorrect, I remain of the view that the excessiveness of your internet browsing activity remains a valid allegation to have presented to you. b. I am disappointed that you have chosen to present your response to this allegation with such an arrogance and condescension. Rather than actually responding to the allegation, providing any sort of mitigation/explanation or demonstrating any sort of remorse for your actions, I am saddened that you have instead focussed on arguing the calculation of the 1822 figure (which I appreciate may not be correct), and have not appeared to accept any level of responsibility or sort to remedy your actions. . . . [Extract from document entitled "Anonymizers and the threats they pose] In general terms, an anonymizer allows a user to view more than normally permitted on the Internet through their DRN account, while hiding the activities that the user is performing. This raises significant concerns regarding the user's activity and motivations, while preventing the ability to monitor activity against careless or malicious factors, possibly including but not limited to: Uploading sensitive data from the DRN to direct unclassified sources. Discussing classified information through the means of chat, blogs, and social media sites. Viewing inappropriate material. Visiting websites that are potentially harmful to the Defence Network. . . . j. Such activity in accessing these sites, from my understanding and the advice I have received from ICT Security Operations, is deliberate and calculated. Such activity is undertaken to deliberately ensure that Defence cannot detect or identify what activities you are performing whilst accessing those sites - therefore hiding your internet activity/searches. I view such action as deceptive and dishonest k. The fact that you also went to the effort of deleting your system cookies at the end of each day (something which I am advised is not automatically done on DRN workstations) lends me to the view that you have been engaging in deceptive conduct, specifically in relation to your DRN use (and misuse). It appears to me that you utilised your IT capabilities to attempt to mask your internet activities and "cover your tracks". . . . b. It is also my view that given you have gone to the effort of deleting your cookies at the end of each day, you have actively utilised your IT knowledge and technical understanding to engage in activities of deception, which are forbidden by Departmental policies, and have taken calculated steps to avoid your actions being detected. . . . Comments 12. I have relied heavily on the technical advice I have received from ICT Security Operations in making my determination in relation to this allegation. This is because I do not have the expertise to obtain and confidently analyse the data provided by National ICT Security Operations, Investigations Support term (as our Departmental IT technical experts). I am however confident and willing to utilise the expert advice I have received in making a determination of this matter. Therefore, I do find that you have accessed anonymous search proxy's (generically referred to as anonymizers) to conduct and mask your internet search activities. This activity is not only deceptive and a breach of Departmental policy, it is also a significant security risk to the DRN (as outlined above). . . . ALLEGATION C: you have deliberately used an Anonymizer to hide a number of your Internet search activities, therefore bypassing Defence Network security tools. The risk posed to the DRN by your actions in allowing you to transmit and receive unsolicited data is significant. Finding 15. I have determined on the balance of probabilities that you have, in this instance, breached the APS Code of Conduct. . . . …The use of anonymizers is a deliberate attempt by an individual user with the sole purpose of rendering them anonymous to network administrators and network security tools. It is activity contrary to DI(G) CIS - 6-1-001 as it may contravene the appropriate use of Defence ICT resources in some or all of the following: Para 20 c - Has the potential to affect national security or military operations e.g. by discussing Defence activities on the internet without detection. Para 20 d - Creates an impost on the Commonwealth e.g. is wasteful of ICT resources. Para 20 e - Adversely impacts Defence business activity e.g. it carries the risk of allowing entry of malicious software that could adversely affect the operation of the DRN. Para 20 g - Inappropriate use of Defence ICT Resources for personal gain e.g. Using the anonymizer to conduct personal business interests in Defence tie [sic] and thus hide that activity from detection. Para 20 h - use Defence ICT resources in relation to inappropriate content e.g. accessing pornography, illegal imagery, gambling online. Para 20 l - Use Defence ICT resources to engage in dishonest, deceptive or malicious practices e.g. undertaking activities that breach the APS or Military Codes of Conduct. . . . a. I appreciate that I am unable to categorically conclude what it was that you were searching for/viewing/accessing whilst you were utilising anonymizer sites and so the link between the content viewed and any associated policy breach cannot be ascertained. Having said that however, in general, your active seeking and utilisation of anonymizer sites is not permitted by Departmental policies, and as such constitutes a breach in itself. …. c. I am disappointed that you have displayed no acceptance for your actions in relation to this matter. From your response to the NOSM, I consider that you have viewed this entire misconduct process as farcical and comedic. The lack of responsibility and accountability for your actions is highly concerning to me and indicates that you have no appreciation for the severity with which the Department views your actions. d. Furthermore, you have taken no remedial action that I can see and I am disappointed that you, particularly as an employee who I would expect would have a higher than average knowledge of the IT environment, have chosen to mock this process and the evidence collected and have come across (deliberately or otherwise) as dismissive and defiant. . . . Comments 26. As Delegate of the Secretary of Defence, I am unable to view your actions in this matter with anything other than the highest level of concern. This is especially due to what the user of anonymizer sites could do (upload classified Defence information, access high level pornographic material etc) and not necessarily what the user did do. The fact remains that regardless of what you may have been doing whilst utilising the anonymizers, accessing such tools is forbidden and will not be tolerated. . . . 28. My role in proposing an appropriate sanction for your breaches of the APS Code of Conduct must take consideration of a number of factors relevant to this matter. That is, any sanction that I propose must: a. communicate the seriousness with which the Department views your actions; b. address the significant risks your actions have posed to the DRN; c. demonstrate the seriousness of this misconduct process; d. communicate the need for you to respect, understand and most importantly comply with departmental requirements; and e. communicate to the broader Department that such action is not acceptable and will not be tolerated by the Department of Defence. 29. As such, considering all factors relevant to this matter, I am presently of the view that the termination of your employment is the appropriate sanction to propose."

[27]

Imputations (7), (8), (9) and (10)

These imputations are drafted such that the ordinary reasonable reader must have conveyed to them that the plaintiff has in fact done the things specified in each of the imputations. The difficulty with the way in which these imputations have been formulated is that when one reads the Statement of Reasons as a whole, there are numerous references to the fact that the author does not know why the plaintiff has used anonymizers and what the plaintiff has done with the use of an anonymizer. The fact that an anonymizer prevents the author's knowing which, if any, of the possible risks have eventuated, is inconsistent with the terms of the imputations.
An example of one such passage is sufficient to demonstrate the point. At paragraph 26 on page 25 of the Statement of Reasons, Ms Pokoney wrote: ". . . I am unable to view your actions in this matter with anything other than the highest level of concern. This is especially due to what the user of anonymizer sites could do (upload classified Defence information, access high level pornographic material etc) and not necessarily what the user did do. The fact remains that regardless of what you may have been doing whilst utilizing the anonymizers, accessing such tools is forbidden and will not be tolerated."
An ordinary reasonable reader who read only the Minute would not even have conveyed to him or her the suspicion that the plaintiff had engaged in the activities referred to in the imputations. Such a person who read the Statement of Reasons would have conveyed to him or her the possibility that the use of anonymizers might have allowed the plaintiff to do the acts alleged, but not that the plaintiff had actually done any of the acts alleged.
Imputation (10) is in a separate category. It is not referred to expressly as a possibility in the Statement of Reasons at all. Rather it constitutes the worst possible inference that could be drawn from the plaintiff's use of anonymizers. Only a deeply suspicious reader would even contemplate that possibility, much less regard it as having been carried by the matter complained of. As the test is one of the ordinary reasonable reader, the proposition that this imputation was carried must be rejected.
For the foregoing reasons, none of imputations (7)-(10) was carried by the matter complained of.

Gmitrovic v Commonwealth of Australia

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

Cited By (1)