Firestone v Australian National University [2004] ACTSC 76 (1 September 2004)

Last Updated: 16 September 2004

FIRESTONE v THE AUSTRALIAN NATIONAL UNIVERSITY

[2004] ACTSC 76 (1 September 2004)

APPEAL - scope of Personal Protection (Workplace) Order - whether multiple offensive emails and telephone calls constitutes personal violence - whether the order creates hardship to appellant - contacting employees at the workplace.

Protection Orders Act 2001 (ACT), s 47(2)(f)

Human Rights Act 2004

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 40 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 1 September 2004

IN THE SUPREME COURT OF THE )

) No SCA 40 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: MICHAEL FIRESTONE

Appellant

AND: THE AUSTRALIAN NATIONAL UNIVERSITY

Respondent

ORDER

Judge: Higgins CJ

Date: 1 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant, in this appeal, challenges a decision of Magistrate Doogan, made on 18 June 2003, to issue against the appellant a "workplace protection order" on the application of the respondent.

2. That order, entitled "Personal Protection (Workplace) Order", purported to restrain the appellant, until 18 June 2004 from:

1. ... engaging in behaviour that constitutes personal violence in relation to the workplace, namely THE AUSTRALIAN NATIONAL UNIVERSITY, including offices buildings, and grounds generally bounded by but not limited to (i) Barry Drive; (ii) Childers Street; (iii) University Avenue; (iv) Marcus Clarke Street; (v) Lawson Crescent; (vi) Parkes Way; (vii) Clunies Ross Road, and (viii) North Oval bounded by McCaughy Street and Barry Drive and Watson Street, and (ix) Fenner Hall bounded by Northbourne Avenue and Ipima Street and Lowanna Street, and (x) Mount Stromlo Observatory and its boundaries ("the workplace"), in particular:

(a) threatening to cause personal injury to an employee in their capacity as an employee at the workplace;

(b) behaving in an offensive manner towards an employee in their capacity as an employee at the workplace;

(c) behaving in a harassing manner towards an employee in their capacity as an employee at the workplace.

2. ... subject to Order 3, be prohibited from:

(a) entering the premises of the Australian National University, being the workplace, which is the subject of the aggrieved person's application;

(b) contacting an employee of the workplace;

(c) harassing, threatening or intimidating an employee of the workplace;

(d) causing another person to contact an employee of the workplace;

(e) causing another person to harass, threaten or intimidate an employee of the workplace.

3. ... be permitted to:

(a) contact the Director Student and Academic Services, Dr P Miller by letter concerning the hearing, of Mr Firestone's appeal of the decision of the Applicant dated 23 April 2003, by the Appeal Committee of the Applicant; and

(b) enter the campus for the sole purpose of attending the hearing, if the hearing before the Appeal Committee is convened on the Applicant's campus.

4. The Court notes the undertaking of the Applicant to inform the Court if the Applicant's Appeal Committee decision permits Mr Firestone to re-enrol as a student of the Applicant so that the Court may consider whether any amendment to these orders is necessary.

3. The appeal was instituted on 8 July 2003.

4. The order was varied on 18 May 2004, to accommodate the need for the appellant to attend an Appeal Committee hearing in relation to his academic enrolment.

5. Notwithstanding that order, on 11 May 2004 the Appeal Committee upheld the appellant's appeal and permitted his enrolment, subject to conditions which the appellant, on 13 May 2004, accepted, in a course for Master of Philosophy. One such condition was that he not engage in "harassment of any persons".

6. The Notice of Appeal cited the following grounds:

(a) The Magistrates Court erred in finding that the appellant had engaged in personal violence in relation to the workplace.

(b) The Magistrates Court erred in finding that the appellant might engage in personal violence in relation to the workplace if an order was not made.

(c) The Magistrate Court did not give any or sufficient consideration to the principles for making protection orders set out in section 6 of the Protection Orders Act 2001.

(d) The Magistrates Court did not make the protection order that is least restrictive of the personal rights and liberties of the appellant as possible having regard to the object set out in section 6 of the Protection Orders Act 2001 and the principle detailed in section 6, subsection (1) of the Act.

(e) The Magistrates Court did not give any or sufficient consideration to the hardship that the making of the workplace order causes the appellant.

(f) The Magistrates Court erred by considering allegations of previous behaviour of the appellant in relation to individuals outside a workplace.

(g) The Magistrates Court decision to make an order prohibiting the appellant from contacting an employee of the workplace was made without power and without sufficient consideration of the principles set out in section 6 of the Protection Orders Act 2001.

THE PROCEEDINGS BEFORE MAGISTRATE DOOGAN

7. The application before her Worship was made on behalf of the Australian National University ("ANU"), a body corporate, by Ms Rachel Louise Vance, a person authorised so to apply by the ANU. She alleged, by application dated 27 November 2002, that the appellant had:

Engaged in behaviour of an offensive or harassing nature in that:

See attached affidavits of Kenneth Bruce Moore and Amanda Pia Krarup Laugesen

And unless the Respondent is restrained, I believed [sic] that such behaviour is likely to happen again.

8. The orders sought were to restrain the appellant from:

"(a) entering the workplace, namely the grounds, buildings and offices of the Australian National University bounded by (i) Sullivans Creek Rd (ii) Daley Rd (iii) University Ave "the workplace";

(b) being within 15 metres from the workplace;

(c) contacting an employee at the workplace; or at their home address, by phone, email or in person;

(d) harassing, threatening or intimidating an employee at the workplace;

(f) causing someone else to do something mentioned in paragraphs (c) (d) or (e) [sic].

9. I note that there is no area enclosed by the roads referred to in (a) and that the reference to (e) in (f) was otiose.

10. On 27 November 2002, Special Magistrate Lalor made an Interim Order, ex parte, but, in my view, appropriately, which limited the scope of that order to one named building ("Building 96") which the applicant identified as "the workplace" and 50 metres therefrom.

11. The appellant was prohibited from contacting employees at "the workplace" except through a solicitor. He was restrained from harassing, threatening or intimidating employees at the workplace. If employees had concerns as to contact away from the workplace, Special Magistrate Lalor held that they would need to apply for personal protection orders.

12. The application was otherwise adjourned to 4 December 2002.

13. On that date, Magistrate Doogan, amended and extended the Order made by Special Magistrate Lalor.

14. The area covered by the Order was expanded to also include "Room 1.09, 1.11 and 1.13 of Building 10".

15. The appellant appeared in person, having, it seems, received the Interim Order of 27 November 2002.

16. Ms Tonkin, of counsel, appeared for the ANU. She sought the amendment referred to above on the basis that a Ms Karen Holt, who occupied the rooms known as the Council and Board Secretariat of ANU and is the Publications Committee secretary, had received an email, apparently from the appellant.

17. She also sought to cover "students using the premises" at the ANU, and to cover contact with employees "of" the workplace as opposed to "at" the workplace, relying on s 47(2)(f) of the Protection Orders Act 2001 (ACT) ("PO Act").

18. Evidence was called from Kelly Ann Ward, a legal officer at the ANU. She had prepared an affidavit annexing the email referred to. Neither that affidavit, nor the email, is in evidence before me. Nor was it tendered on the final hearing. There is no appeal, however, against the making of the interim orders.

19. There was a reference to persons receiving phone calls from a telephone service to which the appellant had access.

20. Mr Kenneth Bruce Moore deposed that, after 27 November 2002 he had received numerous "strange phone calls". A check identified a Telstra payphone as the source of those calls.

21. Ms Amanda Laugesen deposed to a number of anonymous phone calls in the (very) early morning.

22. The matter was then adjourned for final hearing on 19 February 2003. Presumably, the matter tendered was regarded as prima facie evidence warranting the interim order made, though that material was not, as such, tendered at the final hearing.

23. Nevertheless, there was tendered at the final hearing evidence from four witnesses, in addition to affidavits and annexures from 12 other persons. This material evidenced numerous emails and telephone calls, the former in great numbers, the latter also in great numbers and at all hours of the day and night.

24. The emails might, in part, have been the product of malfunction, that is, multiple copies accidentally re-transmitted. The phone calls, many anonymous, could not be so regarded. The overall pattern and point of origin of the phone calls, apart from the connection of the recipients with the appellant, even where he was not recognised as the caller, certainly warranted a finding that the recipients were being harassed by the appellant.

25. Most of the phone calls were, however, to home telephone numbers. An issue is raised as to whether such calls, albeit harassing, can be relied on to grant a workplace order and, in particular, restraining such conduct in respect of such employees otherwise than at the workplace.

26. Certainly, her Worship was in error in asserting:

He also made admissions [in his evidence] to calling Amanda Largesson [sic] 31 times at her home between 31 October and 26 November 2002. He admitted being served with the interim protection order on 28 November 2002, [which] prohibited contact with employees, yet he admitted that he made contact with Rachael Vance almost immediately after that.

27. The Interim Order was made on 27 November 2002. It was limited to contact "at the workplace" that is, Building 96 only. It did not purport to prevent contact with Ms Vance at all. However, nothing seems to turn on that error. The number and content of emails and phone calls remains so excessive as to warrant a finding that they would reasonably be regarded as harassment and, in most cases, offensive.

28. Her Worship so found and I find that conclusion not only compelling but inevitable.

29. It was apparent that, at the time, the appellant was labouring under the influence of various grievances, mostly imaginary, which were exacerbated by his own disproportionate responses to those supposed grievances. No doubt his clinically diagnosed depressive condition was a contributing factor to his disturbed and concerning behaviour. It is of note that his behaviour, though harassing and offensive, has not involved physical violence nor, despite some bizarre references in some emails, threats of physical violence.

30. Nevertheless, in my view, her Worship was right to find not only that harassing and offensive behaviour had been engaged in but, as at 18 June 2003, such behaviour was likely to continue if not restrained. It is unnecessary further to detail the reasons for those conclusions. Perusal of the affidavit material and, indeed, the appellant's own admissions in evidence make each such conclusion unassailable.

31. Her Worship concluded that the scope of the order geographically ought not to restrain the appellant from being upon or entering lands or premises other than "the workplace". That her Worship considered to follow from the terms of legislation, though she commented that such a restriction was "rather a ludicrous result" leading, perhaps, to a proliferation of personal protection orders being sought by affected employees concerning such personal contact outside "the workplace".

32. By contrast, however, her Worship considered that the legislative provisions in question did permit restraint of contact by telephone or email not merely at "the workplace" but also at the homes of affected employees.

33. Her Worship, whilst noting that to prohibit contact with all ANU employees and entry to all buildings and facilities of the ANU was too broad and went well beyond what was necessary, nevertheless, made that order subject to exceptions, being places and persons with whom it might be demonstrated that the appellant had legitimate reasons for contact or entry.

34. Some of the grounds of appeal may therefore be shortly dealt with. Grounds (a) and (b) challenge the findings that the appellant engaged in "personal violence" in relation to the workplace and was, unless restrained, likely to continue to do so.

35. "Personal violence" in relation to a workplace is defined by s 44 of the PO Act. The relevant portion in relation to the appellant is:

... if the person -

(c) is harassing or offensive to an employee in the employee's capacity as an employee at the workplace.

36. As already noted, her Worship found conduct so defined had been engaged in in relation to persons at the workplace as well as at their homes and that unless restrained such conduct would be likely to continue. Those findings were well supported by the evidence. It follows that grounds (a) and (b) must fail.

37. Ground (e) complains of hardship to the appellant. It was no hardship to require cessation of harassing and offensive behaviour. It would be unacceptable for the appellant to have been prevented from pursuing his legitimate interests but the order allowed for his legitimate appeals to be pursued. Indeed, they have been to the extent that the appellant's re-enrolment, on conditions of good behaviour, has been allowed. Ground (e) therefore fails.

38. Ground (f) likewise fails. Section 46(1) permits the Court to consider:

(c) if the respondent has previously engaged in behaviour that is domestic violence, personal violence or personal violence in relation to a workplace - that behaviour.

39. The evidence in question, of previous behaviour before 1995 in relation to Mr Michael Smith detailed similar behaviour though less widespread, after a falling out between the appellant and Mr Smith, then a lecturer at Monash University. Harassment of Mr Smith, including offensive emails continued intermittently up until May 2003. The appellant was clearly responsible for that harassment.

40. The earlier behaviour was relevant not only by reason of s 46(1)(c) but also went to the issue as to whether the appellant, unless restrained, would continue to engage in such harassing and offensive conduct.

41. That leaves grounds (c), (d) and (g). These grounds challenge the scope of the order granted, both as a matter of discretion and as a matter of law.

SCOPE OF THE ORDER

42. First, s 44(c) refers to the foundational behaviour ("personal violence in relation to a workplace") as referring (relevantly for present purposes) to conduct that is harassing or offensive to an employee in the employee's capacity as an employee at "the workplace".

43. However, whilst the "conduct" must have as its nexus the relevant employee's status and function as such, it does not purport to confine such "conduct" merely to conduct engaged in "at" the workplace.

44. Section 47 defines the scope of workplace orders:

(1) The workplace order may contain the conditions or prohibitions the Magistrates Court considers necessary or desirable

(2) Without limiting subsection (1), the order may do 1 or more of the following:

(a) prohibit the respondent from entering the workplace;

(b) prohibit the respondent from being within a particular distance from the workplace;

(c) prohibit the respondent from contacting, harassing, threatening or intimidating an employee at the workplace;

(d) prohibit the respondent from damaging property in the workplace;

(e) prohibit the respondent from causing someone else to do something mentioned in paragraph (c) or (d);

(f) state the conditions on which the respondent may enter or approach the workplace, or approach or contact an employee.

45. (c) does refer to "an employee at the workplace", though (f) refers to approaching or contacting an employee in general terms.

46. It is also relevant to note, the "principles for making protection orders" referred to in s 6, in particular.

(2) If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1).

[That is, ensures protection of employees from personal violence in the workplace.]

47. Certainly, that provision would accord with the interpretative principles required by the Human Rights Act 2004 ("HR Act") (see ss 13, 15(2) and 30(1).

48. Indeed, the balancing provisions of the HR Act entitle the victims of "personal violence in the workplace" to the vindication of their rights to protection.

49. Nevertheless, the terms of s 47(2) seem to me to confine the scope of the orders which may be made thereunder to conduct at the workplace. That is expressly so stated, save for (f) (supra). However, the inference to be drawn is that the provision relates to entering or approaching the workplace or approaching or contacting employees at the workplace.

50. That does not end the matter. Provisions (a) to (f) (supra) are expressly not to derogate from the scope of s 47(1). It is clear that in this case the appellant's conduct towards the persons referred to in evidence in contacting or attempting to contact them at their homes was by reason of their role and status as employees of the respondent.

51. I note that the Dictionary includes as employees those engaged:

(a) under a contract of service; or

(b) under a contract for services; or

(c) under an apprenticeship; or

(d) under a training agreement under the Vocational Education and Training Act 1995; or

(e) to work for the person as a volunteer.

52. In the case of personal or family violence, the number of persons who may be victims of the "personal violence" will be both limited and readily defined, as will the places at which they work or reside.

53. It may be that a person who is the subject of offending conduct is a "relevant person" for the purposes of a domestic violence order and a person entitled to apply for a personal protection order. A person so entitled to apply for protection may also be selected for offending conduct in his or her capacity as an employee at a workplace. In other words, it does not follow that, because a person may qualify for a domestic violence or personal protection order, they are precluded from the scope of a workplace protection order.

54. It seems to me that her Worship was correct to observe, in effect, that to confine the available orders so that, for example a "relevant person" can only be protected by a "domestic violence order" or that a person subjected to personal violence which could be the subject of a "personal protection order" is precluded from protection from that violence where it arises from the person's status or function as an employee at a workplace, though engaged in wherever the person may be, would be an absurdly restrictive situation. It would also raise a question whether, in such a case, the "personal protection order" could protect an employee at the workplace or whether a multiplicity of different orders would be required.

55. Of course, the requirement that orders be no more restrictive than necessary to the protection of the person or persons subjected to "personal violence" remains the guiding principle. A person might, for example, harass employees at a workplace but have no individual animus against any of them in particular. Further, it would be desirable to specify the employees rather than to refer to "employees" generally who should not be contacted away from the workplace to avoid the prospect of accidental or inadvertent breach. It is important to avoid the waste of resources in pursuing a breach action which, when the facts are known, is revealed as innocent and not culpable. Further, a person has a right to know what he or she is forbidden to do.

56. It is true that the order her Worship made is defective in that sense but it was in general terms warranted subject to that greater specificity regarding the persons who were not to be contacted whether at the workplace or at home. That could have been specified. Persons suffering contact were quite capable of notifying the respondent of unwelcome contact from the appellant so that their names and addresses might be specified.

57. Nevertheless, given that the order has now expired and no breach action is pending, it seems to be pointless merely to redraft the order made so as to make it more specific as to which employees and places of residence were to be avoided.

58. The appeal is dismissed.

59. I will hear the parties as to costs if they wish to be so heard.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 2004

Counsel for the Appellant: Self represented

Counsel for the Respondent: Mr J Purnell SC

Solicitor for the Respondent: University Legal Office

Date of hearing: 11 June 2004

Date of judgment: 1 September 2004