Is a reasonable defence disclosed?
63 As has been said, it is necessary to consider the Schedule as a whole. That is especially germane to Professor Winn's submissions that it fails to disclose a reasonable defence. Before addressing his specific complaints one by one, therefore, it is helpful to assess the case the Schedule puts in overview. In doing so, I agree with the tenor of Professor Winn's submissions that it is necessary to focus on the allegations of specific conduct in which he is alleged to have engaged and, perhaps, the reactions of others to that conduct, rather than inferences or conclusions said to arise from those facts. The imputations, inevitably, concern things Professor Winn is said to have done and, in one case, concern his character (as 'a bully').
64 With that focus, the relevant particulars, if established at trial, and taken at their highest, would lead to the following primary findings of fact:
(1) Professor Winn refused to communicate with staff members under the level of Associate Professor. That made staff members feel undervalued and alienated. It required Associate Deans to have to reluctantly deliver bad news. Professor Winn did not reply to certain emails, two of which were directed to him specifically, and one of which was sent to all colleagues in relation to the culture of the School of Education. All this behaviour led staff members to consider him to be distant and unapproachable.
(2) Professor Winn reported Dr Lowe to the ECU Office of Integrity regarding a $1,000 honorarium, without speaking to Dr Lowe about any concerns first. During the investigation, Dr Lowe felt intimidated, shocked and afraid that he would lose his job. Professor Winn offered him no support and showed no concern for him during the investigation. After Dr Lowe was cleared of any wrongdoing, Professor Winn caused a letter to be sent to him stating that Dr Lowe had brought ECU into disrepute, and suggesting that he was unprofessional. Dr Lowe felt intimidated by Professor Winn.
(3) Professor Winn disputed Dr Allen's control over the DFAT funding, then amounting to approximately $4,000, and was informed that he could not confiscate those funds. Subsequently, in late 2019, he told Dr Allen to spend the funding by the end of 2020. He refused an application from Dr Allen to use the funds in January 2020 and gave a false (meaning incorrect) reason for doing so.
(4) Professor Winn did not reply to Dr Prout's circular email of 4 December 2019 (note that this is one of the emails referred to in (1) above) expressing concern about the culture of the workplace at the School of Education, assuring colleagues of his support and care, and encouraging them not to despair but to treat each other with care and mutual respect. Professor Winn did not otherwise contact staff about the email or offer support to staff. He did not respond to Dr Prout's subsequent request for a meeting (note that this is also one of the emails referred to in (1) above). A few months after Dr Prout sent his first, circular email, Professor Winn refused permission for Dr Prout to tutor a unit which he had tutored in previous years.
(5) A decline in staff satisfaction measures occurred during Professor Winn's tenure as Executive Dean, as measured by comparing staff survey results in September 2020 to a similar survey in 2018. Professor Winn was silent and unapproachable at a staff meeting called to discuss the survey results.
(6) Professor Winn:
(a) refused, for a spurious reason, to approve the appointment of a particular person as a tutor to teach an IT class, upsetting the teacher of the class;
(b) approved the act of another person to convert fail marks of some 30 to 40 foreign students that had been based on their lack of proficiency in the English language, to pass marks, upsetting the teacher of the relevant program; and
(c) contrary to previous practice, did not give a salary increase or promotion to Associate Professor to a person who had been promoted to the position of Assistant to Associate Dean, which upset that person.
(7) In around October 2021 the Vice-Chancellor of ECU announced an inquiry and investigation into the culture of the School of Education. On 19 May 2022 he sent an email to all ECU staff which said that, following that investigation, a 'significant cultural improvement program' would be undertaken and consequently Professor Winn would be stepping down from the position of Executive Dean.
65 A further relevant background fact which is the subject of one of the particulars is that Professor Winn's predecessor established a culture of collegiality, honesty and open communication amongst staff at the School of Education (para 10). The breadth of that allegation makes it problematic, as discussed below, but for present purposes it may be assumed that it is established. It is relevant to the question of a reasonable defence because, as Professor Winn's submissions point out, the imputation that he created a toxic workplace culture of bullying and fear implies that the culture was not of that kind before he made it so.
66 With hesitation, I conclude that some of the allegations summarised above, when taken together, and after proven by evidence, will be capable, taken at their highest, of establishing the substantial truth of most of the imputations pleaded by Professor Winn.
67 The hesitation arises because it cannot be said that the particulars (assuming them to be proven) present a strong case that the imputations are true. The imputations are strong; they present Professor Winn's behaviour as reprehensible, involving serious misconduct such as bullying, intimidation, and the creation or fostering of a toxic workplace culture. The particulars, if established, may not rise to be so strong.
68 However, I am conscious of the need for caution in strike out applications (which this substantially is), especially those based on no reasonable defence having been disclosed. And I am also conscious that, as explained above, particulars are not evidence; ultimately it is the evidence, with its full context and texture, that must be adjudged as requiring, or not, a characterisation of what occurred as bullying or intimidation.
69 In that regard, there were few submissions made about the meaning of 'bullying'. Senior counsel for the respondents submitted that it could extend to acting in a way where a staff member is not able to approach the Executive Dean in a workplace where such communication would otherwise be expected or required. She also submitted that it could extend to omitting to take acts to deal with genuine staff concerns. I do not accept that either of those concepts by themselves amount to bullying. In the absence of full submissions it would not be appropriate to make a finding at this point about what the term does mean. It is enough to say that it is likely to involve physical or emotional aggression with a view to inflicting fear or physical or psychological harm, or at least with reckless disregard of such consequences.
70 When the story about the investigation of Dr Lowe (paras 24-32) that is told in bare terms in the particulars becomes the subject of evidence, it may deserve such a characterisation. It may be found to have been a distressing attack on Dr Lowe's integrity for no good reason. The same may be said, albeit with less confidence, of the conduct in relation to Dr Allen's honorarium (paras 38-50). It may be found that Professor Winn sought to meddle with the DFAT funds and vindictively withheld approval for their use on the basis of a false reason. And, again with less confidence, it may be said that Professor Winn's refusal to permit Dr Prout to tutor, and his conduct at paragraphs 72 to 74 of the Schedule (described at [43] above), also deserve such a characterisation. All of that is in the context where Professor Winn was the Executive Dean of the School of Education and therefore in a position where it was open to him to abuse his authority.
71 In that context, and taken together, it is reasonably possible that the conduct alleged, if established, was bullying and intimidatory. And having been repeated, it may thus be the conduct of a bully. It would further follow, if that conclusion were to be reached at trial, that it would be reasonably possible for that conduct, as conduct of the head of the School of Education, to be found to have created or fostered a toxic workplace culture of bullying and fear within the School.
72 I therefore accept (with hesitation) that the Schedule discloses a reasonable case as to the substantial truth of the imputations pleaded at paragraphs 7.1, 7.2 and 7.4 of the statement of claim. The particulars do not fall so far short of being capable of supporting the truth of those imputations that it is justified to refuse leave to rely on them.
73 That reasoning also explains why I conclude that some of the allegations disclose a reasonable defence. The conduct actually attributed to Professor Winn that may rise to that level is the conduct summarised at (2), (3), (4) (concerning the refusal to permit Dr Prout to tutor) and (6) above. It is impossible to see how the other matters alleged, if proven, would show the substantial truth of strong imputations of bullying and intimidation. Whether they may nevertheless stay in the particulars as necessary background will be considered below.
74 Also, I have said that the particulars are capable of establishing some of the imputations, and I have not said that is so in relation to the imputation at paragraph 7.3 of the statement of claim. It will be recalled that this imputation is that Professor Winn 'bullied, intimidated and gaslit staff under his supervision and management causing staff to feel panicked, anxious, humiliated and afraid'. So while the allegations of bullying and intimidation of staff are repetitive of some of the other imputations, this paragraph goes further, to refer to the effect of the conduct as causing staff to feel panicked, anxious, humiliated and afraid. It also refers to gaslighting.
75 As to the effect of the conduct on staff, there are allegations that the investigation into the honorarium, and the letter received after it, caused Dr Lowe to be intimidated and afraid that he could lose his job (which amounts to anxiety) and caused him to panic. There is an allegation that Dr Allen felt humiliated by Professor Winn's conduct.
76 But as for gaslighting, senior counsel for the respondents accepted as a reasonable (minimum) definition of gaslighting, 'behaving towards somebody in a way that causes them to doubt the truth of their perceptions': see e.g. Macquarie Dictionary (9th ed) 'gaslight'.
77 That kind of behaviour does not appear in the Schedule. Senior counsel submitted that it can be seen in the allegations concerning Dr Lowe, in that Dr Lowe was made to doubt or to second-guess the morality of his conduct with respect to the honorarium. But there is no suggestion in the Schedule that the investigation into the honorarium had that effect or that purpose; to say that it did is conjecture. And even if there was such a suggestion, the actual conduct alleged only amounts to challenging and criticising Dr Lowe's integrity. As upsetting as that might be, without more it does not amount to gaslighting. For similar reasons, I do not accept that the allegations about Professor Winn's conduct in relation to the DFAT funding could amount to gaslighting.
78 The conclusory assertions throughout the Schedule that the alleged conduct was gaslighting therefore have no foundation. Leave to rely on them, that is, leave to rely on paragraphs 33, 51, 57A and 74A of the Schedule, will not be granted. It was common ground that in that circumstance, and subject to resolution of Professor Winn's further objections, there should be leave to replead.
79 Before moving on from this overview, it is necessary to address another thread to Professor Winn's submissions, namely that the primary facts alleged do not support the pleas that various conclusions can be inferred (described above). Professor Winn relied in that regard on the following observations of Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [87]-[88]:
As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:
Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, e.g., Luxton v Vines (1952) 85 CLR 352 at 358.
80 However, Spigelman CJ and Lord Wright were describing the role of inference in fact finding based on evidence at trial. While of course the difference between inference on the one hand, and conjecture and speculation on the other must be observed, I accept the submission of senior counsel for the respondents that in the present context the question comes down to that articulated by Wigney J in Rush: whether the facts alleged, at their highest, are capable of proving (by inference or otherwise) the truth of the defamatory meaning sought to be justified. For the reasons given, I consider that here they are (save in respect of gaslighting).
81 The correct approach to assessing inference in the present context is, with respect, reflected in the following observations of Rares J in Wing v ABC at [101]:
It is one thing to point to facts that, objectively, enable an inference to be drawn when considered with other facts or evidence or the totality of the evidence. Indeed, in a circumstantial case, all of the evidence must be weighed together in order for the tribunal of fact to be satisfied whether or not the case has been proved: R v Hillier (2007) 228 CLR 618 at 638 [48] per Gummow, Hayne and Crennan JJ. But it is not reasonable to allege, as the respondents repeatedly have, that the Court will, or should, infer that, for example, in par 57, Dr Wing had conversations with 11 named, living persons in which he said or did something to support what is alleged, when the respondents do not, and cannot, give particulars of any facts or circumstances that occurred in any of those meetings.
82 Here, in contrast to Wing v ABC, there are particulars given of things Professor Winn is said to have done on relevant occasions, and with the qualifications expressed above they are, as a matter of logic, capable of supporting the inferences asserted. I will not deny leave to the respondents to rely on the allegations of inference at paragraphs 30, 49 and 57D. I have other concerns, described below, about the parts of the pleading that contain pleas as to inferences in paragraphs 66 and 88, so for reasons given below leave to rely on them will not be given.
83 Beyond that I did not, with respect, find the comparisons between this case and Wing v ABC and Chak Chau Wing useful. Each case depends on its own facts. While I did consider that the respondents were seeking to extend the definition of 'gaslighting' too far (and also the definition of 'bullying'), the fact that an attempt to do something similar failed in the case of Dr Chau was not especially illuminating.