Employer’s Liability for Employee’s Psychiatric Injury Caused by Wide Dissemination of Fabricated Email

Habermann v Cook Shire Council [2025] QSC 214 (26 August 2025) is an instructive decision in the space of personal injury litigation apropos of, principally, the scope of the duty of reasonable care owed by an employer to an employee.  The context was the defendant employer’s management of the fact of an email fabricated by a person or persons unknown, but expressed to have its source in the plaintiff employee.  The plaintiff was a longstanding – and ‘well qualified and high performing’ – employee who was employed as the defendant’s Governance and Risk Manager. She suffered a psychiatric injury in consequence of dissemination of the email, culminating in eventual tabling in State parliament.  Henry J found the defendant liable to the plaintiff – for not taking steps, in discharge of a duty of care, to expose the email as a fabrication – and awarded damages of just under $2.4m.  While the decision is lengthy, the relevant portions are these:

PART A: LIABILITY

[1]  Ellana Habermann’s health and career was a casualty of the malevolent conduct of persons who fabricated an email in her name during a dispute with the Council at which she was employed.

[2]  The fabricated email purported to be an internal Council email authored by Mrs Habermann to the Cook Shire Council’s Chief Executive Officer. It falsely portrayed her as racist and engaged in a deceitful misuse of her position to prevent a local aboriginal corporation, Gungarde,1 from assuming control of the lease of a failed waterfront cruise business which owed rent and rates to Council.

[3]  The email was deployed by the director of the cruise business, Pamela Roberson, to encourage Council to settle a debt proceeding instituted by Council against her business. She testified she did not know it was a fabrication. Regrettably, Council botched what should have been the simple task of demonstrating the email was a fabrication. Its failure to do so heightened the risk of the fabricated email being broadcast to the public, thus perpetuating the allegation, implicit in its content, that Mrs Habermann was the author of it. That risk eventually manifested when a Member of Parliament, Mr Rob Pyne, tabled it in Parliament. The result of that public demolition of Mrs Habermann’s character was a lasting psychiatric injury and consequent inability to continue working.

[4]  It is a well-established incident of the relationship between employer and employee that the employer owes the employee a duty to take reasonable care to avoid foreseeable risk of injury to the employee, including foreseeable risk of psychiatric injury.2 Mrs Habermann alleges Council failed, in exercising that duty, to avoid the perpetuation in the public domain of the allegation that Mrs Habermann was the author of the fabricated email. Such perpetuation would necessarily involve the accompanying perpetuation in the public domain of the fabricated email because it was the content of the fabricated email which represented Mrs Habermann as its author. I accordingly approach consideration of the alleged failure in exercising the duty of care in this case as a failure to avoid the foreseeable risk of psychiatric injury to Mrs Habermann from the perpetuation of the fabricated email in the public domain.

[5]  Council submits that as a matter of law the scope of an employer’s duty of care cannot extend to guarding against foreseeable risks of employee injury posed by the conduct of third parties, because such third parties cannot be controlled by Council. If wrong about that, Council denies any breach or that it was causative of injury or that the injury was foreseeable.

[6]  To aid determination of the scope of Council’s duty of care it is useful to consider the alleged path of causal connection as between the alleged want of care and the damage suffered.3 In this case that requires consideration of the context in which the existence of the fabricated email emerged, how it was responded to by Council, how its tabling in Parliament was a necessary cause of Mrs Habermann’s injury and whether there was a foreseeable risk that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain.

[7]  It became clear by the close of evidence that a necessary causal step in the infliction of injury was the tabling of the fabricated email in Parliament by Mr Pyne. Self-evidently Council had no control over the decision-making of Mr Pyne. However, there may have been protective steps Council could and should have taken earlier, making it unlikely that those relying on the fabricated email would have persisted, in turn making it unlikely the fabricated email would have been provided to and tabled by Mr Pyne.

[8]  In considering the path of causal connection these reasons will not dwell upon Council’s alleged failures to take some protective steps which, as Mrs Habermann’s counsel acknowledged,4 fell out of contention as the case progressed. By closing addresses, the potential protective steps attracting particular focus were steps to reveal facts demonstrating the falsity of the fabricated email to the director of the cruise business, Mrs Pamela Roberson and the CEO of Gungarde, Mr Greg Whittaker.5 These reasons conclude the fabricated email would not have been perpetuated in the public domain if Council had taken those steps.

[9]  Mere proof of a path of causal connection does not prove liability in negligence. It will remain necessary to determine the scope of the duty of care, whether it was breached and whether causal responsibility for the damage ought be attributed to Council.

[10]  Determination of liability will accordingly involve consideration of the following issues:

1. Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council’s control?

2. In what context did the existence of the fabricated email emerge?

3. What was Council’s response to the promulgation of the fabricated email?

4. How was the tabling in Parliament a necessary cause of Mrs Habermann’s injury?

5. Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?

6. Was there a foreseeable risk, prior to the tabling, that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain?

7. What was the scope of Council’s duty of care?

8. Did Council breach its duty of care?

9. Did the breach cause the injury?

1. Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council’s control?

[11]  Council submits that Council’s duty of care as an employer did not, as a matter of law, extend to taking reasonable care to prevent foreseeable risks of injury to employees posed by the conduct of third parties because they were not able to be controlled by Council. That submission must be rejected.

[12]  The scope of an employer’s duty of care to its employees is informed by the employment context from which the duty derives. Thus, the duty’s scope extends to the context of the employee’s performance of work required by the employer.6 Conversely, it does not extend to preventing foreseeable risk of injury having no connection with the employee’s employment.

[13]  What though of the scope of the employer’s duty as it applies to foreseeable risk of injury being inflicted by the conduct of third parties targeting employees because they are employees of the employer? Council submits that scope should only extend to cases in which the employer has a power to assert control over the conduct of third parties.

[14]  That submission is substantially founded upon the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil.7 That was an occupier’s liability case, in which the plaintiff, an employee of a video shop in a large shopping centre, was attacked and injured by three assailants in the centre’s carpark after finishing work late at night. Gleeson CJ, with whom Gaudron and Hayne JJ agreed, held the centre did not have a duty to protect against injury resulting from the criminal behaviour of third parties.

[15]  Gleeson CJ observed the ‘general rule’ is that there is no duty to prevent a third party from harming another, because the common law does not ordinarily impose liability for omissions. However, it was also explained there are exceptions to the general rule, deriving from relationships between parties; one such relationship being that of employer and employee.8

[16]  In referring to the exception provided by the employer/employee relationship, Gleeson CJ cited Chomentowski v Red Garter Restaurant Pty Ltd,9 Public Transport Corporation v Sartori,10 and Fraser v State Transport Authority.11 The facts of each are instructive.

[17]  In Chomentowski,12 an employee successfully sued an employer in negligence after being attacked by robbers when he was trying to lodge the takings of the employer’s business late at night at a bank’s night safe. It was held the foreseeable risk of such robbery could have been avoided by not exposing the employee to it, for instance by providing the employee with an armed guard or retaining the takings in a safe at the employer’s premises for banking the following day.

[18]  In Sartori,13 the employer bus company was held liable in negligence after an employee was attacked by an intruder through an unlocked gate to the company’s employee carpark. To guard against the foreseeable risk of trespass by criminals the employer secured the carpark with perimeter fencing topped with barbed wire, accessed by a lockable gate with a newly installed lock. It breached its duty of care by failing to ensure the lock was operating.

[19]  In Fraser,14 a female bus driver was required to ‘lay over’ in a secluded spot where she was dragged from the bus and attacked. There had been previous attacks. Her employer was found to have breached its duty to take reasonable steps to safeguard the driver from such an attack, like providing security at the lay over spot or changing its location.

[20]  Note that in none of those cases did the employer have the power to control the conduct of the third party. In this, the exception to the general rule provided by the employer/employee relationship is different from some other special relationships. Compare the example, cited by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil,15 of a gaoler owing a duty to protect a prisoner from attack by another prisoner. In that example the gaoler has the power to control the conduct of the other prisoner. At best the employer in the employer/employee cases cited by Gleeson CJ had the power to control the taking of steps to mitigate against the risk of attack upon an employee by a third party. It was a failure to take those protective steps which constituted the relevant breach in each case. In this context, it is to be appreciated that the object of the employers’ duty of care is the avoidance of foreseeable risk to its employees. That taking reasonable steps to try and avoid such risk may not guarantee success does not eliminate the existence of the duty.

[21]  Council’s argument would have it that even if there are reasonable protective measures an employer can take to mitigate against the foreseeable risk of injury posed to employees placed in the path of third party harm because of their employment, the employer has no duty to act because it has no legal power of control over the third party. This ignores the notorious fact that the potential misconduct of third parties can be materially influenced, including deterred, by protective measures taken by others who have no legal power of control over them. It also ignores that employees are vulnerable to such harm because they are employed by the employer.

[22]  It is the nature of the power relationship as between employer and employee, not the employer’s power over third parties, which justifies the exception to the general rule identified by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil.16 In that relationship there is a power imbalance, with the employee in the vulnerable position of acting in service of the employer.

[23]  An employee’s service of an employer may potentially place the employee at foreseeable risk of harm from a third party. For example, a road worker at a road works site may be put at foreseeable risk of physical harm by a third party, such as an inattentive driver. A bank teller may be put at foreseeable risk of psychiatric harm by a third party, such as a terrorising bank robber. In such cases the employer has no legal power of control over the third party but that does not mean the employer is unable to take steps to mitigate against the risk of the third party harming its employee.

[24]  Where an employer holds the power to take reasonable protective steps to avoid the foreseeable risk of injury posed by third parties to its employees, in their capacity as its employees, then the employer’s duty of care to its employees requires it to take such steps. What if any protective steps are reasonable to take will inevitably depend upon the individual circumstances of the case, including how onerous the steps may be relative to the magnitude of the risk and the apparent probability of the steps influencing the third party’s conduct.

[25]  Before turning to the circumstances of this case, I note Council’s Third Further Amended Defence denied the pleaded duty because ‘any such duty would be inconsistent with the law of defamation’. Also, Council’s written outline of submissions asserted, citing passages in Tame v New South Wales,17 Council should not be found liable because any duty owed would be a duty to guard against what non-employees might publicly say about Mrs Habermann ‘which may have been inconsistent with the law of defamation’. However, the denial and the assertion attracted no actual submissions from Council.

[26]  The existence of the law of defamation does not preclude the imposition of the duty of care contended for here. The passages cited in Tame derived from the principles which denied the existence of a duty of care in Sullivan v Moody.18 The potential incoherence of law with which those passages and principles were concerned was the imposition of a duty of care upon persons or entities which would be incompatible with other duties owed by a defendant.19 Council has not identified any duty it held which would be incompatible with it having a duty to take reasonable protective steps to avoid the foreseeable risk of psychiatric injury posed to Mrs Habermann as its employee by third parties perpetuating the fabricated email in the public domain.

[27]  The only arguable basis faintly raised in the course of this case to suggest that Council’s duties or obligations obliged it to refrain from reverting to Mrs Roberson and Mr Whittaker with information demonstrating the fabricated email was fabricated, was privacy, but her privacy was only at risk if the email was perpetuated in the public domain. This provided yet a further reason for Council to revert to Mrs Roberson and Mr Whittaker. They already had the fabricated email. Privacy concerns were therefore of no application in communicating further with them about it, but provided ample reason to do so, so as to mitigate against the perpetuating of the email in the public domain by them or their associates.

2. In what context did the existence of the fabricated email emerge?

The converging paths of Mrs Habermann, Mrs Roberson and Mr Whittaker

[28]  The plaintiff, Mrs Habermann, moved to Cooktown to commence the position of Procurement Officer with the defendant, Cook Shire Council, in 2006, aged 28. She enjoyed living there, became well settled there and has lived there ever since. She commenced a relationship with another Council employee, John Habermann, in 2007. They married in 2009 and had three children, in 2010, 2012 and 2016.

[29]  Mrs Habermann, a well-qualified and high performing employee, rose in Council to the position of Business Services Manager and subsequently the position of Governance and Risk Manager. Her roles at Council involved her implementing Council’s improved compliance with the laws and regulations binding local government, including in respect of tenders for Council related work and assets. The professional performance of such a modernising ‘change agent’ role would inevitably have attracted some resentment. That is particularly so in a region where, as former CEO Timothy Cronin testified, some people think ‘there are no rules north of the Daintree’.

[30]  Council leased a waterfront property on the Endeavour River in Cooktown to Cayman Cruises Pty Ltd trading as Cooktown Cruises. Its principals, Pamela and Lyle Roberson, ran a cruise boat business from there, but it had suffered losses through interruptions to trading because of family illness related obligations and supply chain difficulties. Cayman Cruises advertised to sell the business in late 2011, hoping to pay their outstanding rent and rates to Council from the proceeds.

[31]  At one point Mrs Roberson spoke with Mr Greg Whittaker, CEO of Gungarde, about the possibility of Gungarde buying the business. Mr Whittaker became interested in the possibility of Gungarde’s involvement if it could have a 10-year lease. Cayman Cruises’ lease had less than four years to run.

[32]  On 27 August 2013 Mr Whittaker met Mayor Peter Scott in the presence of Mrs Habermann and Mr McCrae, the manager of Council’s planning and environment section. Mrs Habermann thinks the Council’s then CEO, Mr Wilton, may also have been there. Mr Whittaker informed the meeting that Gungarde was a prospective purchaser of Cayman Cruises’ business. He said they were seeking Council’s confirmation, in the event of such purchase, that the Cayman Cruises lease would be assigned or transferred to Gungarde and extended to become a 10-year lease.

[33]  Mrs Habermann’s presence had been requested to explain procedural processes. She explained the process was that the lease should be put to public tender. That she provided such advice is unremarkable given the lease was an income generating public asset and a lease of 10 years was mooted. As she explained in evidence, there can be exemptions, but the orthodox course is to put such an asset to public tender. In the years to come, that provision of bureaucratically orthodox advice may have identified her as an illogical target of resentment by persons who perceived that Cayman Cruises’ travails could have been solved back when Gungarde showed interest.

[34]  Mr Whittaker advised his board against buying Cayman Cruises’ business in the absence of the assurances he had sought from Council. As for Cayman Cruises, Mrs Roberson had made repeated written requests on its behalf to Council seeking waiver of outstanding rate and rents owed and advising the business was up for sale.20 The requests had gone unanswered by Council so she complained to the Ombudsman.

[35]  Mrs Habermann was unaware of these unanswered requests and only came to know of that problem incrementally through August and September 2013. In that era she learned Mrs Roberson had complained to the Ombudsman and then spoke with Mrs Roberson and went through the letters Mrs Roberson had forwarded to the Ombudsman’s office.

The authentic email and the fabricated email

[36]  On 13 September 2013 at ‘4:39:58 PM’ Mrs Habermann sent an email (‘the authentic email’) to Cayman Cruises’ Mrs Roberson, cc’g Council’s CEO Stephen Wilton, regarding Council’s failure to address repeated requests by Cayman Cruises to waive outstanding rates and rent owed and wanting to know if they had gone before Council.21

[37]  This authentic email, of 13 September 2013, began:

Good afternoon Pam,

I am sorry for the delay. I was going to contact you mid-week but things got away from me.

After we spoke the other week I went through the various letters you forwarded to the ombudsman office. I am very sorry your requests have not been acknowledged and you have not received timely information or action with reference to your inbound correspondence.

Based on the information in those letters and our talk, I have determined your matter in issue to be as follows:

1. You have made multiple requests to have your outstanding rates and rent (over the Webber Esplanade lease) waived as a concession to genuine hardship. You have received no response to these requests, but have received ongoing demands for both overdue rates and rent in arrears.

2. You would like to know whether your request for consideration has gone before Council; and

1. if yes, what was the outcome? Or

2. if no, why has it not gone before Council?

With reference to the above, I have established that your request has not yet gone before Council. For this I apologise. It is very poor that it has taken so long to action and that, despite your letters to Council, no decision has been reached. In this case the reason for the delay is that the letters were going to one department but were not being seen by our accounts, leasing and rates department — the department who would have actioned your request and who have been sending you letters of demand. This must have been very frustrating for you and is a failure in our operational processes. I will look to have this failure rectified so that it does not happen again.

To put things right, and to make sure you are awarded a decision as soon as possible, I will undertake to place your request for concession before the October Council meeting. …22

[38]  The email continued in a similarly professional tone, requesting the provision of some further information. It finished with these words:

If I receive that documentation by the end of the first week of October, your report will go before the October Council meeting. I hope this is an acceptable outcome to your complaint?

Kind regards and sincere apologies

[39]  Beneath that appeared Mrs Habermann’s standard email descriptors containing her name and position, along with her phone, fax and mobile numbers, her email address, Council’s website address and its postal address.

[40]  It is contextually helpful at this point to explain the content of the fabricated email. It was created about three years later but its fabricator pretended it was written by Mrs Habermann at virtually the same time as the authentic email. It purported to be an email from Mrs Habermann to then CEO Stephen Wilton at his Council email address. Its subject title was endorsed ‘Meeting’. It was purportedly dated ‘Fri, 13 Sep 2013 16:39:57+1000’. The ensuing content was:

I am sorry for the delay.

I was going to contact you but things got away from me. We had the meeting with Greg Whittaker. He’s looking to purchase the Webber Esplanade lease of Cayman Cruises Pty Ltd. Ms Roberson has made multiple requests to have outstanding rates and rent waived as a concession to genuine hardship or until it sells. We have made no formal response to these requests. This has not put her off and the request for consideration has to go before Council soon as she has contacted the Ombudsman’s office.

After meeting with Greg Whittaker, I went through the various files you forwarded me and with what the ombudsman sent through I have sufficient information to make sure the decision is made in our favour. It was bad enough that we had to hand over the housing to the dirty bastards we don’t want them down there. I will undertake to write and place a request before the October meeting. No action has been taken with the adjacent lease at this time although I am trying to stop that progressing.

I can assure you this report will be handled with discretion. I will ensure it is kept secure.

Contact me if you have any questions. I hope this is an acceptable outcome.

Kind regards (emphasis added)

Mrs Habermann’s name, position and contact details then followed.

The facts persuasively demonstrated the email was a fabrication

[41]  I find this email was a fabrication. As much was clearly established, but regrettably not clearly explained or announced, when examination of Council’s email system confirmed the fabricated email had not existed within it. There was also a persuasive array of other facts demonstrating it was a fabrication.

[42]  In summary, those facts were:

(1) The only purported metadata ever provided for the fabricated email is for a document created in July 2016 in an author field named ‘Roberson family’.

(2) The fabricated email’s content and that of an email trail supposedly connected to it have 10 discrepancies from a genuine Council email on their face.

(3) The purported time of the fabricated email is a mere one second’s difference from the genuine email. It is unlikely the same sender could have engineered, let alone bothered to engineer, such extraordinary synchronicity.

(4) The fabricated email commences with the same opening words as the genuine email. That is an implausible coincidence. The opening words of the genuine email have obviously been copied in an attempt to mimic Mrs Habermann’s style of expression.

(5) The fabricated email’s substantive content smacks of contrivance. Note the conspiratorial closing assurance of secrecy, ensuring ‘it is kept secure’. The reference to ‘it’ could contextually only have been either the content of the email itself or the report to be made to Council for the decision. If it was the content of the email, the very use of email, instead of a simple conversation, would have been creating evidence of the secret. If it was the report to Council then it was no secret — the evidence shows Mrs Habermann gave Mrs Roberson a copy of the report which she gave to Council. Another contrived aspect of the content is its reference to having to ‘hand over’ housing. That is a contortion of the unsensational reality, explained in Mr Whittaker’s evidence, that Council had ceased some involvement in social housing whereas Gungarde had continued its involvement.

(6) The fabricated email’s content is at odds with the objective evidence of how Mrs Habermann in fact behaved within Council on that very day regarding Mrs Roberson’s lease. For example, at 4.15 pm on 13 September 2013, only 25 minutes before the alleged sending of the fabricated email, Mrs Habermann sent an email to Anne Kelly and Kirstin Fletcher of Council’s rates and arrears section, cc’g CEO Stephen Wilton. Its message content, excluding salutations, was:

Can you please put a halt on any further follow-up to rent and rates in arrears with reference to the Webber Esplanade Lease (Cayman Cruises). They have been asking repeatedly that their outstanding debt be put before Council for hardship consideration, and we (including myself) have been chasing them for those debts, without responding to their request for hardship. Right and left hand not talking to each other.

So, given they have now taken this to the ombudsman (and it looks like we really should have gotten back to them before) I’ll put their request before Council next month, and then we’ll have a concrete decision as to how we go forward.

I’ll keep you posted.23

The content of that email demonstrates that Mrs Habermann’s solicitous attitude to Mrs Roberson’s problems with Council, as contained in the authentic email to Mrs Roberson, was mirrored by the attitude Mrs Habermann was exhibiting in internal Council correspondence about the matter at that very time. It is inconsistent with the sinister attitude the fabricated email depicts her as having at that time in her internal Council correspondence.

(7)The fabricated email’s substantive content is inconsistent with evidence of Mrs Habermann’s demonstrated professionalism and empathy towards the Indigenous community in her work on behalf of Council and, for that matter, in her studies. As to the latter, Mrs Habermann’s thesis in achieving her Masters in Urban and Regional Planning in 2012 was on an inclusive strategy for Indigenous land use, planning and development for land returned to traditional owners on Cape York.

(8)As soon as the fabricated email was provided to Mrs Habermann, she emphatically and convincingly denied writing it. She pointed out many of the above facts, explained the email would not be in Council’s system because it was a fabrication. Further, in an unlikely step to take if she had authored the email, she specifically requested Council to appoint an independent IT expert to examine Council’s email system so as to establish the truth.

Mrs Habermann put Mrs Roberson’s request to Council, but Council rejected it

[43]  On 3 October 2013 Mrs Habermann sent an email to Mrs Roberson advising she had placed an attached report before Council for its consideration as ‘Committee of the Whole’.24

[44]  True to her word, Mrs Habermann had submitted a confidential request to Council’s Committee of the Whole in early October 2013. It was headed, ‘Request for waiver of rent and rates in arrears — Cayman Cruises’. It neutrally explained the matter’s history, the regulatory framework to be applied by Council regarding eligibility for concessions due to hardship and the nature of the lessor’s hardship. It concluded by identifying the alternative potential decisions which it was for Council to make, namely:

a. grant a full rebate of all rates and charges and write off the outstanding lease rental;

b .refuse the application for a rebate and refuse the application to write off the debt for outstanding lease rental;

c. defer payment of rates, charges and lease rentals until the business is sold;

d. grant a concession of 50% or other percentage determined by Council on all outstanding rates, charges and lease rentals.25

[45]  Council resolved not to waive, write-off or defer the outstanding rates and rent.

[46]  About a year later, on 13 October 2014 Council took possession of the leased property because Cayman Cruises had failed to remedy its breach of not paying rates and rent.26

…

5. Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?

Council’s conduct caused the tabling

[196]  Working backwards, the causal pathway to the tabling of the document in each instance was that they were provided to Mr Pyne by Ms Leigh. In the first instance Ms Leigh obtained it as assistant to Mrs Roberson and in the second instance received it from Mr Whittaker. The cause of the documents being so obtained and provided in each instance was Council’s own conduct.

[197]  Broadly speaking that conduct was a failure to properly investigate the fabricated email and demonstrate its falsity in a timely way to those who had raised it with Council — Mrs Roberson, in her debt case, and Mr Whittaker, in his meeting with Mr Cronin. In a directly causal sense that conduct was Council’s failure to revert to Mrs Roberson and Mr Whittaker regarding the outcome of its investigation of the fabricated email, in circumstances where it knew both expected it was going to do so.

[198]  It should have been a simple task for Council to demonstrate the fabricated email had not emanated from its email system. Demonstrating that fact alone would demonstrate the falsity of the fabricated email. Moreover, as explained at [42] of these reasons, there was a persuasive array of other facts demonstrating it was a fabrication.

[199]  A remarkable feature of this case is that, despite the ease with which it could have been done, Council failed to even attempt to reveal to Mrs Roberson and Mr Whittaker the facts which demonstrated the fabricated email was a fabrication. Even more remarkably, it failed to revert to them in a timely way on the topic in circumstances where it knew they were both expecting it to do so.

[200]  Council in effect argues that none of this matters, because, once the fabricated email was in the hands of Ms Leigh, it was inevitable that she would have passed the email on to Mr Pyne and it would have been tabled in Parliament. That argument must be rejected.

[201]  Before explaining why, I note Council acknowledged in closing submissions that it was unnecessary to deal in a separate sense with Council’s causal responsibility for the second tabling,70 as if a line could be drawn between the role of the two tablings. I agree. However, out of an abundance of caution, I will nonetheless explain why neither tabling would have occurred but for Council’s conduct and continue to assess liability by reference to both.

The first tabling would not have occurred but for Council’s conduct

[202]  Had Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email was a fabrication, there of course exists the possibility that Mrs Roberson would not concede the demonstration satisfied her that the email was a fabrication. After all, she was intimately connected with the revealing of the fabricated email and would have appreciated that she or someone with access to her email system would be suspected of fabricating it.

[203]  However, even if she did not make that concession, it is inherently implausible in the face of Council providing facts demonstrating the email was fabricated, that Mrs Roberson would have continued to rely upon, let alone promulgate, the fabricated email. If she had been the fabricator of the email she would have realised, now she knew Council could show it was a fabrication, that the stakes were considerably higher and riskier for her. She would have realised persisting in relying upon or promulgating the fabricated email may provoke civil action or even criminal prosecution against her. If she had not been the fabricator of the email, she would at least now have realised the email had probably been fabricated and fabricated by someone close to her. In such circumstances it is most unlikely she would have continued to rely upon or promulgate the fabricated email.

[204]  Such a conclusion is consistent with the fact that on Mrs Roberson’s account, she began to have regrets about what she may have unwittingly done when she learned in an Anti-Discrimination Commission proceeding that Mrs Habermann had emphatically denied writing the fabricated email and had pointed out a discrepancy with the timing. If a denial and a timing discrepancy were enough to sow doubt it is inevitable that Council’s provision of the facts demonstrating the fabrication would have had an even more compelling effect.

[205]  That said, in judging what would likely have occurred had Council done what it should have, I place weight upon the objective evidence of the facts prevailing at the time and the inferences flowing from those facts, rather than the subjective views hypothesised by witnesses with the benefit of hindsight. Such views carry no material weight because they are inevitably infected by the natural individual inclination to minimise, rationalise and justify the individual’s involvement in doing unwarranted harm to another.

[206]  That point is relevant to the evidence of Ms Leigh as well. In cross-examination of Ms Leigh, Council’s barrister explored with her whether, if she had seen exhibits 23 and 26, it would have made any difference to whether she would have gone to Mr Pyne. In each instance she looked only briefly at each exhibit, explaining that she had seen them about a month ago. For the reasons just discussed, and the ensuing reasons, I give no weight to her responses on the topic.

[207]  Exhibit 23 is the email Mrs Habermann sent on 14 September 2016 to Mr Cronin and others, describing what she had been told by Charlie Martin in his phone call about the email — implicitly the fabricated email — of which he had been told. Ms Leigh was asked if she had been shown that email before she went to Mr Pyne whether it would have made any difference. It is to be appreciated she had given Mr Pyne a dossier of other information, not merely the fabricated email. She asserted she would still have ‘given him all the evidence I had, which would have included that email’. However, when asked whether she would have told Mr Pyne that she did not accept what Mrs Habermann wrote, she responded, less definitively:

Not in total. No … I have problems. I would have given certain parts of it little to no weight. Some parts of it, I’m not sure about. To me they didn’t answer the questions that I was asking about.

[208]  Exhibit 26 was Mrs Habermann’s email to Mr Cronin and others of 23 February 2017 in which she provided her comprehensive and persuasive denial of authorship of the fabricated email by specific reference to various aspects of it and other information. When it was put to her that even if she had that email in her possession, it would not have made any difference and she would still have taken the fabricated email to Mr Pyne, her response was, ‘Yes. Because I was waiting for the independent report’. She elaborated upon that answer in re-examination, explaining the fact that Mrs Habermann’s email was asking for an independent investigation left her concerned that there was no independent investigation undertaken and that such a failure was part of the maladministration of Council. It is to be appreciated in this context that the dossier she provided to Mr Pyne evidently included an array of examples of alleged maladministration by Council.

[209]  I found this evidence inherently implausible. It betrayed an obvious realisation by Ms Leigh that the content of Mrs Habermann’s email of 23 February 2017, exhibit 26, was very persuasive in indicating she did not write the fabricated email. Ms Leigh’s hypothesis that she would nonetheless have provided the fabricated email to Mr Pyne, not because it was a fabrication but because Council’s failure to provide the outcome of its investigation to Mrs Roberson was an example of maladministration by Council, was not credible. Moreover, it was a flawed hypothetical because, if she had known there were such persuasive indications as those appearing in Mrs Habermann’s email of 23 February 2017, such knowledge would likely have emerged via Council’s disclosure of it to Mrs Roberson. That corrupts the premise of a hypothesis which assumed Council did not revert to Mrs Roberson on the topic.

[210]  I have already found that if Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email was a fabrication, she would not have further relied upon or promulgated the email. However, once Mrs Roberson would have decided that the fabricated email should not be further relied upon or promulgated, it is inherently unlikely Ms Leigh would nonetheless have included the fabricated email in her documents provided to Mr Pyne. In this context it will be recalled Ms Leigh was Mrs Roberson’s assistant in the debt case in which the fabricated email had been deployed. Ms Leigh undoubtedly had a dim view of Council and was motivated to pursue the public promulgation of documents unfavourable to it. However, Mrs Roberson was the legitimising source of the fabricated email and Ms Leigh’s active role in connection with the fabricated email had been as Mrs Roberson’s assistant. Ms Leigh was most unlikely to promulgate it once Mrs Roberson had been provided with the facts demonstrating it was fabricated and decided she would no longer rely on it.

[211]  That conclusion is not undermined by the fact Ms Jerome had been the first person to have given Ms Leigh the fabricated email. Ms Leigh well knew the context in which that had occurred was part of the process of Mrs Roberson being supported by them in respect of the debt case. The strength of the connection with the case is apparent in the content of Mrs Roberson’s statement of 7 July 2017 about releasing documents, a statement I have found was likely created to validate Ms Leigh’s possession of documents including the fabricated email.

[212]  Even if Mrs Roberson did not provide her statement of 7 July 2017 to Ms Leigh or do so appreciating it was for her intended dealings with Mr Pyne, it is unlikely that Ms Leigh would have provided the fabricated email to Mr Pyne. That is because if Council had reverted to Mrs Roberson, as it had undertaken to do, and revealed the facts demonstrating the fabricated email was a fabrication, as it easily could have done, Ms Leigh would inevitably have been told of that fact. Her motivation to deploy the fabricated email, as part of her promulgation of documents unfavourable to Council, would consequently have been eliminated. Further, the realisation of her suspicious proximity to the person or persons who had apparently been engaged in such wrongdoing would have deterred her from being involved in publishing the email. She would not have provided the fabricated email to Mr Pyne.

The second tabling would not have occurred but for Council’s conduct

[213]  The same reasoning applies in respect of Ms Leigh’s provision of Mr Whittaker’s statement to Mr Pyne, which gave rise to the second tabling in Parliament.

[214]  It will be recalled I have found Mr Cronin knew Mr Whittaker expected Mr Cronin would get back to him about the investigation of the fabricated email. Mr Cronin did not get back to Mr Whittaker. Mr Whittaker thus continued to think the fabricated email was genuine. That belief was unwittingly reinforced when he wrongly assumed Mrs Habermann’s tearful call of thanks to him was an admission. He would have been disabused of that belief and assumption if Mr Cronin had reverted to him about the investigation of the fabricated email and revealed the facts which demonstrated the fabricated email was a fabrication.

[215]  Because Mr Cronin did not revert to him about the matter, Mr Whittaker became frustrated by Council publicly proclaiming in the wake of the first tabling that the fabricated email had been found to be a fabrication by an independent external investigation. Ms Leigh was likewise troubled by the implication of that publicity, despite Mrs Roberson not having been given the results of Council’s investigation. She accordingly encouraged and assisted Mr Whittaker to make the statement which she provided to Mr Pyne and which was then tabled on the second occasion.

[216]  Whether approaching the causal equation directly or indirectly, the second tabling would not have occurred but for Council’s conduct.

[217]  Approaching the causal equation directly, Mr Whittaker would not have provided his statement to Ms Leigh, and thus she would not have provided it to Mr Pyne, if Council had reverted to him and revealed the facts demonstrating the fabricated email had been fabricated. Had that occurred it would invariably have prompted a realisation, or dialogue resulting in a realisation, that he had misunderstood the significance of Mrs Habermann’s tearful telephone call to him. As with Mrs Roberson, even if he was not completely persuaded the email was a fabrication, it is inherently implausible in the face of Council providing facts demonstrating the fabricated email was fabricated, that he would have been motivated to promulgate the fabricated email, let alone do so via the provision of his statement to Ms Leigh.

[218]  Approaching the causal equation indirectly, by reference to what would have occurred if Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email had been fabricated, I have already found Ms Leigh would not have provided the fabricated email to Mr Pyne. It follows she also would not have encouraged Mr Whittaker to make his statement or been motivated to provide that statement to Mr Pyne as she did.

[219]  Indeed, even if Council had not reverted to Mr Whittaker directly, and only reverted to Mrs Roberson, it is likely Ms Leigh and Mrs Roberson would have informed him of Council’s reversion and provision to Mrs Roberson of the facts demonstrating the fabricated email had been fabricated. That is likely because they had previously communicated with Mr Whittaker about the fabricated email. In such circumstances Mr Whittaker is also unlikely to have provided his statement to Ms Leigh.

The fabricated email was otherwise unlikely to find its way into the public domain

[220]  The above reasoning explores the counter-factual of what would have happened if Council had reverted to Mrs Roberson and Mr Whittaker as expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated. If that occurred then, for the above reasons, it is unlikely that they or Ms Leigh would have perpetuated the fabricated email in the public domain.

[221]  This only leaves Ms Jerome, and arguably Mr Martin, as other potentially known sources of knowledge about the email in the community. Ms Jerome’s situation was very closely allied to that of Mrs Roberson and Ms Leigh. She knew of the fabricated email because she was helping Mrs Roberson. Indeed, it was her that supposedly discovered it. Had Council reverted to Mrs Roberson and revealed the facts demonstrating it was fabricated, Ms Jerome would doubtless have been advised of that by Mrs Roberson. Ms Jerome’s proximity to what had occurred meant she was unlikely to have promulgated the fabricated email, for the same reasons I have explained Mrs Roberson was unlikely to have done so.

[222]  This leaves Mr Martin. There is no evidence he was ever in actual possession of a copy of the fabricated email. In any event, his own conduct in twice warning Mrs Habermann about it demonstrates he was unlikely to perpetuate the fabricated email in the public domain.

[223]  Of course, it is theoretically possible that some other person, not identified in evidence, may have had a copy of the fabricated email and possible such a person may have been tempted to broadcast it. However, I can only act on the evidence as known. If there existed evidence of the email having been distributed or shown to persons in the community other than those named in these reasons, Council would doubtless have led such evidence.

[224]  In any event, the evidence suggests the set of persons in the community who did have a copy of the email were closely connected. This makes it likely, if some other person had a copy of it, that they were on the fringe of that set. It in turn makes it likely, had Council reverted to Mrs Roberson and Mr Whittaker per the above discussed counter-factual, that they would have learned of the facts demonstrating the email was fabricated. Such knowledge would likely deter such a person from promulgating the email, particularly in circumstances where the central members of the set were likely to be so deterred.

[225]  In my conclusion, on the balance of probabilities the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker, as expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated.

…

7. What was the scope of Council’s duty of care?

[255]  Council in effect submits the scope of its duty to take reasonable care to avoid exposing its employee to unnecessary risk of injury did not extend to taking steps calculated at avoiding the foreseeable risk of the fabricated email being perpetuated in the public domain.

[256]  In considering the scope of the duty of care, Hayne J explained in Modbury Triangle Shopping Centre Pty Ltd v Anzil,71 that it is useful to begin by identifying the nature of the harm, for which the defendant is said to be liable. Then, consideration of whether that harm, if caused by the want of care alleged, resulted from a breach of duty owed, may more readily identify the scope of the duty on which the claim must depend.

[257]  Here the harm was a major depressive disorder with anxious distress. That psychiatric injury was caused by the fabricated email being perpetuated in the public domain. I have found there was a foreseeable risk of Mrs Habermann suffering a psychiatric injury if the fabricated email was perpetuated in the public domain. I have found the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker and revealed the facts demonstrating that it was a fabrication, in a timely way.

[258]  Accordingly, for the harm to have resulted from a breach of duty owed, it is necessary that the scope of Council’s duty, required it to take reasonable steps to avoid the perpetuation of the content of the fabricated email in the public domain and that such steps included revealing the facts demonstrating the falsity of the fabricated email to Mrs Roberson and Mr Whittaker in a timely way.

[259]  Such a scope is beyond that often encountered in workplace injury cases where there is risk of injury to a person performing a task in the workplace and a need to safeguard against that risk by devising a safe system of work. However, the scope of the duty of care in each case is not identifiable in the abstract and will depend upon the circumstances of the case. There is no logical justification for limiting the scope of the employer’s duty of care by reference to systemic workplace considerations.

[260]  Some cases may involve situation specific circumstances, the novelty of which carries them beyond the circumstances typically contemplated by a so-called system of work. Of course, their novelty may inform assessment of foreseeability. But once an employer is aware of those circumstances, and that they pose a foreseeable risk of injury to an employee in their capacity as an employee, that knowledge informs the scope of the duty owed in those circumstances. It does here.

[261]  Council knew, or acting reasonably should have known, that the fabricated email had not been authored by Mrs Habermann and she had been maliciously targeted by the fabricators of the email, because she was Council’s employee. More specifically, it should have realised Mrs Habermann was targeted because she had some involvement in Mrs Roberson’s request to Council for rent and rates relief and in Mr Whittaker’s meeting with Council about Gungarde potentially taking over Cayman Cruises’ lease.

[262]  Council had to have appreciated the content of the fabricated email was controversial and there was a real risk of it being broadcast to the public.

[263]  Council knew Mrs Habermann was in a position of special vulnerability. She did not have the power to investigate Council’s email system to demonstrate she had not authored the fabricated email. Council would not delegate such a power to her. She had to be kept at arm’s length from the investigation because the fabricated email evidenced serious misconduct by her if she had been its author. It was Council which had the power to arrange for an investigation to be conducted.

[264]  For the same reasons Mrs Habermann was powerless to advocate and demonstrate the falsity of the fabricated email to those who had raised it with Council, namely Mrs Roberson and Mr Whittaker. Again, it was for Council to so advocate and demonstrate. Council could have been in no doubt about this. Council was the plaintiff in the case in which Mrs Roberson had raised the fabricated email and it was its CEO, Mr Cronin, who Mr Whittaker had raised the fabricated email with.

[265]  In New South Wales v Napier,72 where a prison worker suffered psychiatric injury as a result of the threats and actions of prison inmates, Spigelman CJ considered that case’s combination of the inter-related elements of vulnerability, control and assumption of responsibility created a relevant duty of care. Those elements are inter-related here.

[266]  Mrs Habermann’s vulnerability to the devastation of her reputation by the potential perpetuating of the fabricated email in the public domain was all the greater because it was Council, not her, which had control of the steps needing to be taken to try and protect her. It was within Council’s power to investigate the fabricated email, gather the facts demonstrating it was fabricated and reveal those facts to Mrs Roberson and Mr Whittaker, to mitigate against the risk of the fabricated email being perpetuated in the public domain.

[267]  It may be accepted that Council’s assumption of responsibility for investigating the fabricated email and raising an expectation it would revert to Mrs Roberson and Mr Whittaker about what it learned, did not mean it had a duty to do so. That it made such a choice merely bespeaks Council’s obvious awareness that it owed that assumption of responsibility, and its competent execution, to an employee who had been maliciously targeted in her capacity as Council’s employee and was beholden to her employer to try and protect her.

[268]  To adopt the language of Lord Atkin’s seminal judgment in Donohue v Stevenson,73 Mrs Habermann was a person so closely and directly affected by how Council responded to the provision of the fabricated email to it by Mrs Roberson and Mr Whittaker that Council ought reasonably have had her in contemplation as being so affected when directing its mind to its response.

[269]  Council knew there was a risk of the fabricated email being perpetuated in the public domain and it knew that risk would be heightened if Council did not reveal the facts demonstrating it was a fabrication to Mrs Roberson and Mr Whittaker.

[270]  Of course, there could be no guarantees from Council’s perspective that the fabricated email would not make its way into the public domain even if it did revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email. But it was obvious that if it did not do so the risk of that occurring, with inevitably devastating consequences to Mrs Habermann, was much higher. Mitigating against that risk by doing so was an obvious protective step to take in Council’s exercise of its duty to take reasonable care to avoid exposing its employee, Mrs Habermann, to unnecessary risk of injury.

[271]  This accumulation of circumstances amply demonstrates why it is appropriate for the scope of Council’s liability to extend to the injury caused by its below discussed breach of its duty of care.

[272]  I find the scope of Council’s duty required it to take reasonable steps to avoid the perpetuation of the content of the fabricated email in the public domain and that such steps included revealing the facts demonstrating the falsity of the fabricated email to Mrs Roberson and Mr Whittaker in a timely way. It is inherent in that scope that Council should do what was reasonably necessary to be able to reveal facts in such a way as to demonstrate the falsity of the fabricated email.

8. Did Council breach its duty of care?

[273]  Contrary to it being within the scope of its duty, Council did not revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way. The only evidence of Council providing either of them with such facts was Council’s provision of Mr Newman’s report to Mrs Roberson long after the tablings had occurred and the harm had been done.

[274]  There are two components to that apparently clear breach, in that it was not enough to merely revert to them but also necessary, in doing so, to reveal the facts demonstrating the falsity of the fabricated email to them. Council’s failure to do the first, necessarily means it failed to do the second.

[275]  It is therefore unnecessary to express a concluded view as whether Council failed to do what was reasonably necessary to be able to reveal facts in such a way as to demonstrate the falsity of the fabricated email. Obviously what it had done left it much less well prepared to do so than it easily should have been. It had obtained an obscurely expressed report from a non-IT expert and took no remedial action to correct those shortcomings.

[276]  In any event Council’s failure to revert necessarily meant that, whether properly prepared to or not, it failed to reveal the facts demonstrating the falsity of the fabricated email to them.

[277]  Finding whether there has been a breach of duty requires assessment of the magnitude of the risk of injury and its degree of probability because that bears upon what a reasonable employer would do by way of response to the risk.74 This is reflected in the requirements of s 305B(1) and (2)Workers Compensation and Rehabilitation Act 2003 (Qld).

[278]  The effect of s 305B(1) is that Council will not have breached its duty to take precautions against a risk of injury to Mrs Habermann unless the risk was foreseeable and not insignificant and a reasonable person in Council’s position would have taken the precautions.

[279]  I have found there was a foreseeable risk, that is, a risk of which Council knew or ought reasonably to have known, of any person in Mrs Habermann’s position suffering a psychiatric injury if the fabricated email was perpetuated in the public domain. In making that finding I identified the collectively extreme prevailing circumstances and how the set of connected people who knew of the fabricated email prior to the tabling were more than ordinarily motivated to publicise it. I also explained how the risk of them revealing the fabricated email to the public was even more significant if Council did not investigate and demonstrate that the email was a fabrication to those expecting it to revert to them about it.

[280]  Council submitted that it was in an invidious position because any course of action it took carried the risk in effect of provoking the perpetuation of the fabricated email. It is unnecessary to consider that submission by reference to the alleged failures to take protective steps which fell out of contention as the case progressed. The submission may have been pertinent to some of those alleged failures, but it must be rejected in respect of its application to the failure to reveal to Mrs Roberson and Mr Whittaker the facts demonstrating the email was fabricated. As these reasons have explained, choosing to revert to those persons in that way would lower risk and choosing not to do so would heighten risk.

[281]  In the circumstances I readily conclude a reasonable person in Council’s position would have reverted to Mrs Roberson and Mr Whittaker and revealed the facts demonstrating the falsity of the fabricated email to them, in a timely way.

[282]  As to s 305B(2), it requires that in deciding whether Council as a reasonable person would have taken precautions against risk of injury, the court consider the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden of taking precautions to avoid the risk of injury. As I have explained, failure to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way, heightened the probability of perpetuation of the fabricated email in the public domain and thus the probability of the occurrence of injury. Council’s own CEO at the time has testified the consequences would be devastating to Mrs Habermann. I have found that psychiatric injury to her or any employee in her position was a foreseeable consequence because of how objectively extreme the circumstances were.

[283]  In the face of all this the burden of taking precautions to avoid the risk of injury merely involved Council doing something which was as much in its interests as it was in its employee’s. Mrs Habermann had, in her email of 23 February 2017, spoon fed Council in demonstrating how easy it could be for Council to assemble facts demonstrating the falsity of the fabricated email and in turn reveal those facts to the very people who expected it would do so. The burden of doing so was light. It is extraordinary that Council botched what should have been such a simple exercise.

[284]  I find Council breached its duty of care to Mrs Habermann to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way.

9. Did the breach cause the injury?

[285]  Section 305D(1) Workers Compensation and Rehabilitation Act provides the elements of deciding that a breach of duty caused an injury are:

(a) the element of factual causation, namely that the breach was a necessary condition of the occurrence of the injury; and

(b) the element of scope of liability, namely that it is appropriate for the scope of Council’s liability to extend to the injury so caused.

[286]  The section thus adopts the ‘but for’ test of causation. Mrs Habermann was accordingly required to prove that her psychiatric injury would not have occurred but for Council’s negligence in failing to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way. I have found on the balance of probabilities the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker, as they expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated. I have found it was the perpetuating of the fabricated email in the public domain which caused Mrs Habermann’s psychiatric injury. It follows Mrs Habermann would not have suffered her psychiatric injury but for Council’s negligence.

[287]  Further, for reasons already given in dealing with the scope of liability, it is appropriate that the scope of Council’s liability should extend to causation of a foreseeable injury which would not have occurred if Council had met the undemanding duty of care which the circumstances of this case placed upon it.

[288]  I accordingly find Council’s breach of its duty of care to Mrs Habermann caused her injury. Council is liable for the consequences thereof.

…

(emphasis added)

A link to the full case is here.

1 Gungarde Community Centre Aboriginal Corporation.

2 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 , 53.

3 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 , 290 [105].

4 T6–74 L 30–75 L 28.

5 The failed steps in effect alleged at [20(b) and (d)] of the Second further Amended Statement of Claim.

6 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44.

7 (2000) 205 CLR 254 , 290.

8 (2000) 205 CLR 254 , 265 [26].

9 (1970) 92 WN (NSW) 1070.

10 [1997] 1 VR 168.

11 (1985) 39 SASR 57.

12 (1970) 92 WN (NSW) 1070.

13 [1997] 1 VR 168.

14 (1985) 39 SASR 57.

15 (2000) 205 CLR 254 , 292 [111].

16 (2000) 205 CLR 254 , 265 [26].

17 (2002) 211 CLR 317 (Council cited [2], [28], [58], [122], [123], [126], [323], [325]).

18 (2001) 207 CLR 562.

19 See in particular Sullivan v Moody (2001) 207 CLR 562 at 581 [55].

20 Exs 44, 45, 46, 48.

21 Exs 1, 34.

22 Ex 1.

23 Ex 21.

24 Ex 49 within a chain of emails commencing with the authentic email of 13 Sept 2013.

25 Ex 22.

26 Ex 51.

…

70 T 6–72 L29.

71 (2000) 205 CLR 254 , 290.

72 [2002] NSWCA 402 [15]–[31].

73 [1932] AC 562 , 580.

74 Wyong Shire Council v Shirt (1980) 146 CLR 40 , 47–48.