Six month hearing in the sex harassment court … Commonwealth Bank stumps up a fortune to defend itself and a former employee in the Vivienne Dye case … Landscape littered with exhausted lawyers … Lure of the siren … Devastating judgment
Dinky DyeAt what point does the legal profession, the courts, the entire machinery of justice say "enough is enough"?
You'd have thought in the case of Vivienne Dye's hydra-headed tangle of litigation that point has well and truly arrived.
After 93 days of hearing in the Federal Court costing the better part of $10 million, and consuming the energies of serried ranks of solicitors and barristers, Dye's breach of contract, sexual harassment, defamation and injurious falsehood case against the Commonwealth Bank and Commonwealth Securities & Ors, was comprehensively hit for six by Justice Robert Buchanan.
He found Ms Dye, a student-at-law, to have lied and fabricated. He added that she was driven by a "venomous desire for revenge".
Her evidence was unimpressive and so was the evidence of her mother, former airline hostess Mrs Vicki Dye. The judge thought Mother Dye was unreliable, generally lacking in credit and, for good measure, untruthful.
Peter King, Roger Rasmussen and Luisa Evans did the heavy lifting for Vivienne, carrying the case for six months.
Exhausted lawyers who saddled up for the ride now litter the landscape, generally screaming about money.
Now there is to be an appeal, largely around an argument that Buchanan should have recused himself because he had been a bank-friendly barrister.
It doesn't sound as though that one will fly, although hope is sparked by a Full Federal Court win Dye had in a pleadings dispute, in September 2010.
Dye is also appealing Justice Peter McClellan's October 2010 costs orders, made in the Supreme Court.
When he made those orders 18 months ago, after deciding to cross-vest the defamation proceedings to the Federal Court, Clayton Utz, for the defendants, put on evidence that $1.1 million has already been spent on the defamation case, alone.
There were costs the respondents' said were wasted as a result of the cross-vesting. The amount claimed for discovery was in excess of $363,000, for subpoenas $112,000 and for proofing witnesses $74,000.
Of that bill for $549,000, McClelland allowed $250,000, plus another $15,000 for Dye's stay application.
He also ordered that the costs cannot be enforced by the defendants until after the conclusion of the Federal Court proceedings.
* * *
Just to recap on Buchanan's 744 paragraphs of findings …
The sexual harassment allegations against two of the bank's former executives Michael Blomfield and Angus Patterson were false.
Dates were wrong, telephone records did not corroborate her claims and events she referred to in oral evidence were no where to be found in her written statements.
Further, her complaint to the police that Angus Patterson assaulted her was ...
"a completely false and fabricated document. It is a disgrace that the allegations were ever made to the NSW Police, exposing Mr Patterson unjustifiably to an embarrassing, and perhaps highly damaging perception that he was under investigation for a criminal offence."
[snip]
"There is no instance in which I accept any of the allegations made against either Mr Patterson or Mr Blomfield, which were relied upon to support Ms Dye’s accusation of sexual harassment against each of them. I am satisfied in each case that the allegations were not only unproved, but were untrue."
Clearly, Buchanan was appalled:
"Ms Dye and her advisors have pursued false claims to the end, perhaps hoping for some last minute settlement … There is nothing to be said legally for any of Ms Dye's contentions and, if I might permit myself at least this observation, nothing to be said for them by reference to any standard of decency."
He also found that Dye was party to leaking details of her case to The Sydney Morning Herald and The Daily Telegraph.
She emailed her industrial relations adviser, Peter Rochfort, attaching an article from The Australian that referred to a CEO of a company in the finance industry being sued for $1.2 million in relation to a sexual harassment complaint.
Dye said to Rochfort: "Peter, can we jump on this bandwagon? Or do I actually have to file in the Federal Court before press?"
Rochfort replied: "I'm on top of it, watch this space."
Dye shot back: "So am I."
Later articles appeared in the press detailing her allegations against Michael Blomfield, a former head of Commsec.
Another revealing email between Dye and Rochford had her saying:
"A Current Affair has said they will pay me money or 'put in a bid' for a story. Peter, do you want to suss it out?"
* * *
Dye also sued the bank and its head of human resources, Barbara Chapman, for defamation and injurious falsehood.
This arose from emails Chapman sent to staff and the media. Imputations pleaded were that Dye had made false allegations that Patterson and Blomfield had sexually harassed her and that she wrongly leaked information to the media that was the subject of a Human Rights and Equal Opportunity Commission investigation.
In relation to the first Chapman email Buchanan found each of the imputations true and protected by qualified privilege.
In relation to a second email he also found the imputations were true and protected by reply-to-attack QP.
Given his findings of fact in the sexual harassment case, the injurious falsehood case was "a hopeless one from the start".
* * *
There have been other defamation disasters.
In 2009 Blomfield's defamation case against the Daily Telegraph came on for trial before a jury and Justice (Hormones) Harrison.
The Smello's prime witness was Grace Kelly look-alike Vivienne Dye.
She commenced by saying that telling untruths didn't make her an unreliable witness.
Saucy emails between Dye and newspaper editor David Penberthy emerged in evidence, dealing with such topics as whether Dye wore a "fur-highlighted g-string", showing above her jeans, to a Commonwealth Bank Christmas party.
The Telegraph withdrew its truth defence four days into Peter Gray SC's cross-examination of Dye.
Bloomfield came away with a "most satisfactory" settlement.
Dye still has a defamation action against Fairfax somewhere in the pipeline.
* * *
A legion of lawyers has been engaged in Dye's enterprises.
Peter McKell had carriage of the most recent Federal Court trial and instructed King, Rasmussen and Evans.
Peter King usually charges $3,000 a day … at 93 days - well, you work it out.
On the respondents' side there were two massive law shops, Clayton Utz and Freehills. On some days in court as many as a dozen lawyers were in attendance.
Peter Rochfort gave advice after Dye's employment was terminated by the bank and worked on the HREOC complaint.
Allegedly, he sued her for money, and there was a cross claim against him, claiming he was responsible for the leaks to the media.
Rochfort ended up with a fraction of what he billed.
Gordon Henderson at Matthews Folbigg gave her some advice on a workers comp claim. Barrister Kylie Nomchong was also on hand.
After Henderson fell by the wayside, Ben Gee at workplace law shop Fisher Cartwright Berriman acted for Dye.
That ended in litigation between solicitor and client, with the firm getting paid about half their bill.
It is understood that Turner Freeman were chasing about $250,000 for earlier rounds in the Federal Court.
Patrick Campion from Cropper Parkhill also acted in the early days of the defamation case.
* * *
Ms Dye was president of the Paddington branch of the NSW Young Liberals.
She had to drop out of that job because she was getting a bit old to be a Young Lib.
Why the party doesn't preselect her for the safest possible seat is a mystery. She'd be perfect as a Liberal politician.