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A former mining employee has applied for leave to appeal after she was unsuccessful in convincing a court she had been “gaslit” by a lawyer about an alleged rape at a Rio Tinto mining site.
Last December, Judge Antoni Lucev of the Federal Circuit and Family Court of Australia (FCFCOA) shut down allegations made by Amy Chapple against a Hall & Wilcox partner with respect to a rape claim at one of Rio Tinto’s mining sites the year prior.
In documents recently filed with the Federal Court for leave to appeal, Chapple claimed Judge Lucev erred in “matters of procedural fairness, of law applied on the basis review of the facts and evidence, and apprehended and actual bias” in favour of the lawyer.
Chapple had been an employee of WorkPac and assigned by the recruitment agency to Pilbara Iron, a subsidiary of Rio Tinto. The first two were respondents to the proceedings and the potential appeal.
According to Judge Lucev’s judgment, Rio Tinto issued a document – known as the CMOne Supplier Brief – to Western Australian employees to advise them a sexual assault had occurred at one of the sites and cautioned them to expect potential media reports.
A person unknown to the proceedings then sent Chapple what Judge Lucev deemed was an “altered version” of this notice that referred to a separate rape. Chapple then reached out to senior executives and the law firm partner to alert them of this fresh allegation.
However, the partner explained to Chapple that there had only been one incident and Pilbara Iron was unaware of another. Chapple alleged the denial amounted to gaslighting, which is the practise of emotional manipulation to make a person doubt reality or memory.
Chapple tried to have the partner stood aside but was unsuccessful.
In the application for leave to appeal, seen by Lawyers Weekly, Chapple alleged a number of errors made by Judge Lucev. The draft notice sought orders for the partner to be stood aside as solicitor and removed from further participation in the proceedings.
Among her grounds, Chapple claimed Judge Lucev undermined her credibility by referring to the CMOne Supplier Brief as being “altered” when the term “amended” had been used in witness testimony.
Chapple said this inferred she or the unknown party “had motive to deceive [the partner], Judge Lucev and [Pilbara Iron]”.
“Such a motive was not in place, nor intended. It was not demonstrated and contradicts the purpose of a sworn affidavit which, if found to be containing falsehoods or misrepresenting the truth, is a criminal act and punishable offence,” Chapple said.
Chapple added Judge Lucev also erred in refusing to accept evidence, including a copy of the CMOne Supplier Brief. She claimed when this was handed up, he said words to the effect of, “no, it’s not necessary”.
“The rejection of this evidence I found concerning and unfair. I did not understand why this was not accepted when the respondents were challenging the authenticity of the document,” Chapple said in an affidavit filed alongside the notice, also seen by this publication.
In another ground, Chappel alleged Judge Lucev erred in his consideration of what a fair minded, reasonably informed member of the public “would” or “might” conclude that the proper administration of justice required when a lawyer was restrained.
In his judgment, Judge Lucev wrote: “That is because the misrepresentations alleged by Chapple to have been made … were simply not made, and there is no factual basis to apply the test.”
Chapple said this excluded the fact the partner did not provide evidence to defend herself against the allegations.
“Such consideration of these words and factors is critical given the credibility issues at hand, on the balance of probabilities given the multiple communications with [the partner] and Rio Tint’s final confirmation that, indeed, only one incident had occurred,” she said.
A case management hearing has been listed for Wednesday, 9 April.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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