17 March 2012

Why mobile phone records are important

For a case where mobile phone records help demolish a plaintiff's case, see Dye v Commonwealth Securities Limited [2012] FCA 242 (16 March 2012) http://www.austlii.edu.au/au/cases/cth/FCA/2012/242.html

The case concerned allegations by Vivienne Louise Dye against Commonwealth Securities Limited, the Commonwealth Bank of Australia and certain personnel of those entities. The allegations centred around sexual harassment during her employment.

In an exceptionally robust judgement by Buchanan J he stated:
The causes of action Ms Dye chose to advance are each without any factual foundation or legal substance. They will each be rejected.
Why? There were many, many reasons in the lengthy and detailed judgement. However, the use of telephone records is of interest. Their objective nature and origin from a third party appears to have been given great weight when weighing up versions of conversations and events.

For example, in paragraph 258 the plaintiff's mother insisted she was present with the plaintiff when the plaintiff received a particular phone call. However, the Court points out that phone records show numerous phone calls between the plaintiff and her mother around that time, which would not be necessary if they had actually been together.
"Mrs Dye said in her evidence that she was in Ms Dye’s apartment in Sydney when Mr Blomfield made a late night telephone call to her on 22 November 2006. She was quite specific about that. She was confronted with the fact that telephone records show that there were numerous calls to her phone late that night and in the early morning. That would only be necessary if Mrs Dye was not in Sydney at all. Mrs Dye was forced to concede that she could not have been in Sydney that evening."

and in paragraph 452
The next problem for Ms Dye’s new account is that the telephone records deny that, as she alleged, Mr Patterson rang her on her mobile phone from his mobile phone on Saturday, 10 June 2006. No such telephone call was made.
paragraph 464
 Events at the soccer game did not transpire as Ms Dye suggested in these later statements. I accept Mr Patterson’s account of what happened on the evening of the soccer match. It is adequately supported by telephone records and by the objective record of the passage of the soccer game itself and the events within it. 
paragraph 492
 Both Ms Dye and her mother volunteered that Ms Dye became sufficiently concerned about Mr Blomfield’s behaviour that she rang her mother during the evening and registered her concern with her. That evidence was false also. It was false when given by Ms Dye and it was false when given by her mother. The telephone records show that the last conversation between them that evening occurred at a time which predated Mr Blomfield’s arrival at the function.
paragraph 499
 Ms Dye’s allegations against Mr Patterson concerning 16 June 2006 (less than 24 hours later) which were made for the first time in the February 2009 police statement also merit immediate rejection. In this case there is some fatal contemporaneous material that makes it clear beyond argument that Ms Dye fabricated the allegation. I pointed out earlier that in her April 2008 published allegations Ms Dye asserted that Mr Patterson invited her for a drink on Friday, 16 June 2006, after she had left a meeting with Mr Blomfield, but that she declined. In the statement which she made to the NSW Police (but not in any earlier statement) Ms Dye said for the first time that something very different happened after Mr Blomfield’s meeting on 16 June 2006. She gave an account of text message and phone communications with Mr Patterson wherein Mr Patterson was angry and demanded that she have a drink with him. She gave this same account in her evidence in the proceedings. The evidence she gave about that aspect was not supported by the telephone records. Far from Mr Patterson badgering and interrupting her, as she claimed, Ms Dye contacted him as soon as the meeting with Mr Blomfield was over.  [my emphasis for clarity]
The court also  used phone records to assist in inferring the intent of communications between the plaintiff and her industrial adviser, as well as a journalist.

Moral of the story? - drafting a comprehensive chronology of all relevant facts is tremendously useful at all stages of litigation - not just when deciding what evidence is required. Dare I say, it seems that Freehills and/or Clayton Utz did a thorough job in their use of the telephone records.

POSTSCRIPT

Ms Dye attempted to appeal to the Full Federal Court of Australia, and the Bank sought security for costs, as it already had a costs order in its favour for over $5.5 million. In August 2012 Emmett J ordered that security in the sum of $200,000 be provided. Ms Dye then applied to the High Court of Australia for special leave to appeal the security for costs decision. That application was refused on 5 June 2013, and costs were awarded against Ms Dye.