Council employee awarded $2m for ‘botched’ investigation

A court was highly critical of the Cook Shire Council for so badly botching a “simple exercise” that it led to the complete annihilation of a former employee’s reputation in a small, rural community.

In awarding former governance and risk officer Ellana Habermann more than $2,300,000 in damages, Justice James Henry of the Queensland Supreme Court condemned the Cook Shire Council for multiple failings during its investigation of a fabricated email.

The fake email contained racist remarks and was made to appear as if it were sent by Habermann in September 2013, even though there were multiple features that suggested she could not be the author.

In addition to the email not being on the council’s system, Habermann repeatedly demonstrated “professionalism and empathy towards the Indigenous community” in her studies and her work in the Far North Queensland community, where she had lived for more than a decade.

Due to the council’s failure to take appropriate steps when the email first came to its attention, Rob Pyne MP tabled it, leading to the “public demolition of Habermann’s character” that caused lasting psychiatric injury and an inability to continue working.

Habermann told the court the council “took my life”.

“They took what I was, what I’d studied for and the person I was in the community … I felt violently ill,” Habermann testified.

The breach of duty of care in this case lay in the council’s failure to avoid the foreseeable risk of psychiatric injury to Habermann “from the perpetuation of the fabricated email in the public domain”.

“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 the employee’s.

“The burden of doing so was light. It is extraordinary that council botched what should have been a simple exercise,” Justice Henry said.

Context of fabrication key to negligence case

The fabricated email was deployed by cruise business director Pamela Roberson, who was involved in a dispute with the council over rents and rates. Roberson testified she did not know it was a fabrication.

Hoping to sell the business and pay council out of the proceeds, Roberson spoke with Greg Whittaker, the CEO of local Aboriginal corporation, Gungarde, who was interested in the waterfront property only if the council could guarantee a 10-year lease.

It was in this context that Whittaker sought the council’s confirmation that the cruise lease would be assigned to Gungarde and extended, while Roberson petitioned to have the outstanding fees waived.

Sometime after September 2015, while preparing evidence to defend against a debt claim filed by the council in the Magistrates Court, Roberson said she and a prominent member of the Cook Shire Residents and Ratepayers Association came across the email.

It was eventually filed as part of the claim in February 2017.

Whittaker said Roberson provided a copy of the fabricated email around mid-February, and he contacted council CEO Tim Cronin to discuss it. Having already been disappointed in the council, Whittaker said he believed the email to be genuine and expressed his anger.

During his meeting with Whittaker, Cronin said he would “look into it”, but it was “obvious” he would have known to contact Whittaker about the investigation’s outcome. Cronin did not, and “no credible explanation has been advanced for the failure to do so”.

“If genuine, the email cried out for explanation and apology to Whittaker. If fabricated, the fact it was fabricated cried out to be communicated back to Whittaker as soon as possible, before its existence was broadcast,” Justice Henry further said.

All signs point to fabrication

Sometime after this, Cronin spoke to Habermann, who testified she believed Cronin must have explained to Whittaker that the email was not in the council’s system and the type of person she really was.

It was on this belief that Habermann called Whittaker in an upset state. Still believing the email was genuine, Whittaker wrongly took this phone call as confirmation that Habermann had written it.

The fake email was eventually passed on to Pyne by Roberson’s assistant and the secretary of the Cook Shire Residents and Ratepayers Association, which was known for being highly critical of the council.

Before it reached that point, however, the council had received a report that indicated the email was a fabrication. It then failed to provide a copy of this report to either Whittaker or Roberson.

Asked why he did not, Cronin claimed he did not have the original email and source code from Roberson, meaning the council could not do a “full investigation” and the existing report “had only gone so far as to ascertaining the email was not present” in its system.

Justice Henry rejected this explanation, finding it “lacked logic” because the fact that the email was not present in the council’s system was enough evidence to suggest it had been fabricated.

“[Whittaker and Roberson] were the very members of the public which council should have been interested in demonstrating the falsity of the fabricated email,” Justice Henry said.

“The point is significant because it was the council’s ensuing failure to so communicate with them that prompted the disclosure of the fabricated email to Pyne MP.”

Too late, the council issued a media release that confirmed it had investigated the email and found it to be a fabrication.

These public assertions frustrated Whittaker, who still mistakenly believed Habermann’s phone call was an admission. At no point did the council seek to remove doubt by showing him the report.

A second statement was created by Whittaker and tabled, causing even further psychiatric damage to Habermann.

“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 Roberson and Whittaker the facts which demonstrated the fabricated email was a fabrication,” Justice Henry said.

“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.”

Having found on the balance of probabilities that the fabricated email would not have made it into the public domain if the council had informed Roberson and Whittaker as they expected, Justice Henry said it was the council’s negligence that caused Habermann’s psychiatric injury.

The case: Habermann v Cook Shire Council [2025] QSC 214.