Twining v Curtis [2010] ACTSC 115

2. The new proposed statement of claim contains two counts in injurious falsehood and one in misfeasance in public office. Senior counsel for the defendant submits that the statement of claim does not support either cause of action and should be struck out.

3. The action arises out of the plaintiff's employment on probation by the Australian Public Service Commission. He was employed on 7 June 2004. The probationary period was extended on 17 September 2004. His employment was terminated on 5 November 2004. His case is that the termination of his employment was a result of malicious conduct on the part of the defendant, a fellow employee of the Commission.

4. The facts relied on by the plaintiff are not set out in chronological order in the proposed statement of claim, which makes the document a little difficult to follow. I shall attempt to summarise in chronological order the facts sought to be pleaded.

5. The plaintiff was employed by the Commission from 7 June 2004 as a APS 3/4 Administrative Officer, subject to a probation condition imposed by the Commission under section 22 of the Public Service Act 1999 (Commonwealth). He had been referred to the Commission by an employment agency. The probation condition gave the Commission the right to terminate the plaintiff's employment if he "failed to meet the probation condition". He was initially engaged as executive assistant to a group manager, Ms Christine Flynn. The defendant was director of human resources at the Commission. On or about 16 June 2004, she is said to have maliciously uttered or inferred to Ms Flynn that the plaintiff had "commented inappropriately" in discussing the circumstances of his engagement with a member of the human resources staff of the Commission and to have said that the latter "could have appealed" the plaintiff's engagement. What the defendant said or inferred was false. What she said caused Ms Flynn to fear the plaintiff, and lowered him in her estimation. This caused Ms Flynn to cease dealing equitably with the plaintiff, and deprived him of a reference from her. This prevented him from obtaining further employment.

6. On 17 September 2004 the defendant extended the plaintiff's period of probation and reassigned his duties to a different area of the Commission. In doing this, the defendant did not afford the plaintiff procedural fairness. She took the steps she did with the intention of injuring the plaintiff's pecuniary interests. The reassignment of duties signalled to the programs group within the Commission, of which Ms Flynn was group manager, that the plaintiff had lost her confidence. The plaintiff had not been initially engaged to perform the duties of the new position. The position involved procedures and systems with which he was not familiar. His new duties required his attendance at times and places to which he had not agreed when engaged. The defendant's actions in this regard caused the plaintiff injury to his pecuniary interests. The plaintiff asserts that the damage to him is continuing.

7. The plaintiff asserts that on 20 September 2004 the defendant maliciously uttered to Ms Flynn, in his presence, that the other staff member previously mentioned "could have appealed" the plaintiff's engagement. The plaintiff asserts that this was malicious for the same reasons as the defendant's conduct on 16 June 2004.

8. Finally, the plaintiff asserts that on 20 October 2004, the defendant, acting either alone or through the agency of another, maliciously uttered or inferred to Mr Ross Davidson that the plaintiff had "a track record for writing complaints without actually bringing the concerns to the attention of the other party.". Mr Davidson was the plaintiff's line manager. The statement was false to the defendant's knowledge. The statement, the plaintiff says, caused Mr Davidson to fear the plaintiff and lowered him in Mr Davidson's estimation. This caused Mr Davidson to cease dealing equitably with the plaintiff. Mr Davidson conveyed what he had been told to the plaintiff's supervisors, Ms Belinda Kevan and Ms Caroline Chase. This caused Ms Kevan and Ms Chase to fear the plaintiff and lowered him in their estimation. They were caused to cease dealing equitably with him. The statement to Mr Davidson caused him to recommend that the plaintiff's employment be terminated, which resulted in that termination. The defendant knew that Mr Davidson was in a position to effect that outcome. This took place at a time when the plaintiff had, to the defendant's knowledge, sought a review of the defendant's decision of 17 September 2004 to extend his probation period and reassign his duties within the Commission. The defendant knew that in the plaintiff's application for that review, he had asked that the final assessment of his probation be undertaken by Mr Davidson. This conduct of the defendant deprived the plaintiff of references from Mr Davidson, Ms Kevan and Ms Chase, and prevented him from obtaining further employment.

9. For the purpose of the defendant's application, I assume that the plaintiff will be able to adduce evidence which will make out the factual assertions in the proposed amended statement of claim. I further assume that the plaintiff will be able to establish that it was the acts of the defendant which caused the Commission to terminate the plaintiff's employment, and that in the absence of those acts he would have been confirmed as a permanent public servant. I assume that the termination of his probationary employment has resulted in economic loss to him.

10. I should add for the sake of completeness that in May 2005 the plaintiff applied unsuccessfully to the Federal Magistrates Court for orders against the Commission pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) for orders quashing the termination of his employment and extending time for the bringing of the application. In February 2006 an appeal from the Federal Magistrates Court by the plaintiff was dismissed by Madgwick J in the Federal Court of Australia. In March 2007 an application by the plaintiff for special leave to appeal from the decision of Madgwick J was dismissed by the High Court of Australia.

11. In relation to the tort of misfeasance in public office, the elements of the tort and the shortcomings of the earlier pleading were dealt with in detail in my decision of 29 January 2008 (Twining v Curtis [2008] ACTSC 3) and in the decision of Penfold J of 2 September 2009 (Twining v Curtis [2009] ACTSC 106). It is unnecessary for me to reiterate the reasons for each of those decisions. Penfold J referred at paragraphs 113 and 114 to the absence of the pleading of a link between the alleged actions of the defendant and any damage suffered by the plaintiff arising from the events of 17 September 2004. Her Honour also referred to the absence of any assertion that the defendant was a public officer or was performing public duties in her dealings with the plaintiff. Also absent was any meaningful pleading of malice or intention to cause harm. It seems to me that the plaintiff has largely overcome these criticisms in relation to the events of that date. If he can satisfy a court that the defendant, in extending the probation period and reassigning his duties, was actuated by malice and that her actions caused him damage, he would appear to have an arguable cause of action for the tort of misfeasance in public office.

12. The other counts he wishes to pursue are for the somewhat esoteric tort of injurious falsehood. The elements of that tort were discussed by the NSW Court of Appeal in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 per Gleeson CJ at 692-694, Kirby P at 711-712; and Mahoney JA at 733. The elements of the tort were the subject of further consideration by the High Court of Australia in Palmer Bruyen & Parker Pty Limited v Parsons [2001] HCA 69; (2001) 208 CLR 388, in particular per Gummow J at paragraphs 57 and following, and Kirby J at paragraphs 108 and following. Although the tort has more often than not been found to have been committed against a person in the practice of a profession or the conduct of a business, I have not been taken to any authority which would preclude a person who has suffered damage as a result of injurious falsehood by a fellow employee in the workplace from recovering. Again, assuming that the plaintiff can prove malice and damage, it seems to me that he has a cause of action that he ought to be allowed to take to trial.

13. That is not to say that the proposed amended statement of claim should be permitted to be filed in its present form. As was pointed out by senior counsel for the defendant, many paragraphs in the statement of claim were prefaced with the words "to the best of the plaintiff's knowledge, information and belief...". The document is not an affidavit but a pleading, and the pleader is required to assert in the pleading the facts which he will be required to prove at trial in order to succeed. Words of that kind have no place in a pleading. At the very least, those words will need to be removed.

14. Also before me at the time of hearing of the application was an application by the defendant for security for costs. Security is sought in the sum of $30,000.00. The solicitor for the defendant deposes that the Commonwealth has incurred costs to date in the various proceedings brought by the plaintiff arising out of the same events of some $186,000.00, including some $66,000.00 costs in the present action. The solicitor expresses the view that the Commonwealth's further legal costs if the action proceeds to trial may exceed $60,000.00.

15. Security for costs has been ordered against an individual plaintiff in an action for damages: see for example Barnes v Saal (Supreme Court of Queensland, 1 February 1991, Senior Master Horton QC, unreported). Security will be ordered only where the proceedings contain an element of abuse of process. I am not satisfied that there is any such element in the present action. Further, the Commonwealth's costs in the Federal Magistrates Court proceedings which went to the Federal Court of Australia on appeal and to the High Court by way of a special leave application are already the subject of costs orders in favour of the Commission. I have not been informed of any impediment to the Commission proceeding to have its costs quantified and to recover them from the plaintiff. It would be inappropriate for me to use the availability of an order for security for costs in the present proceedings, against a different defendant, to delay or perhaps prevent the plaintiff from proceeding with this action.

16. The defendant has not thus far sought orders for costs of the earlier application before me or the appeal to Penfold J. The defendant would need to make application to Penfold J for an order in relation to the costs of the appeal to her Honour, who would, it seems to me, have power to make an order as to the costs of the application before me also. In circumstances where the defendant has not taken the opportunity to seek and obtain costs orders and to have their costs quantified, it would not be appropriate to delay the progress of the action by ordering security for costs at this stage.

17. The situation might well be different if costs in this proceeding had been quantified. An application by the defendant at that point to stay the proceedings until the earlier costs were paid might be seen by the court as appropriate. I say that without having heard argument from either side about the point.

18. Regardless of the efficacy of the pleadings, it should be said that the plaintiff will face a formidable task in making out his case. He will carry the onus of satisfying the court at trial that if it had not been for the asserted conduct of the defendant, his employment would not have been terminated. If he succeeds in that endeavour, his damages may be modest. He is subject to the usual duty of a plaintiff to have mitigated his damages by seeking and taking on such employment as may have been available to him. He is not and has not been as far as I am aware subject to any physical or mental incapacity or disability which might have prevented him from gaining employment, skilled or unskilled, in any area of the workforce. Crispin J, Penfold J and I have on a number of occasions referred to the desirability of the plaintiff's obtaining legal advice and representation. I take the opportunity to repeat that recommendation to him.

19. Whilst the plaintiff is entitled to act for himself, the court will closely scrutinise a pleading lodged for filing by an unrepresented litigant. Such a pleading is not, nor is it required to be, accompanied by a lawyer's certificate as to prospects of success under section 188 of the Civil Law (Wrongs) Act 2002 (ACT). The court cannot assume, as it will normally assume in the case of a pleading lodged by a solicitor, that the document discloses a cause of action or defence, and that it is otherwise in compliance with the Rules and any applicable legislation.

20. The proposed further amended statement of claim is not at present acceptable for filing. The plaintiff should be given an opportunity to amend it to reflect these reasons. I propose to allow the plaintiff twenty-eight days to serve in draft form a further amended statement of claim prior to the formal grant of leave.

21. The plaintiff's application will be stood over to 22 October 2010. I shall hear the parties then as to appropriate orders about the costs of the application and the amendment.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the defendant: Australian Government Solicitor