C v M
[2021] SADC 29
•24 March 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
C v M
[2021] SADC 29
Judgment of his Honour Judge Burnett
24 March 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT OR PUBLIC AUTHORITIES
EVIDENCE - WITNESSES IN GENERAL - IMMUNITIES
PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - LIABILITY OF CROWN FOR ACTS OF SERVANTS
The applicant is the mother of an 11-year-old daughter in relation to whom guardianship orders have been made by the Youth Court.
The respondent is an employee of the Department of Child Protection and from September 2018 was the caseworker assigned to the case concerning the applicant’s daughter.
In 2017, the applicant was awarded custody of her daughter following a trial in the Family Court. The father was granted visitation rights. In about May 2018, the child was removed from the custody of the applicant by the Department of Child Protection.
In 2019, the Department applied to the Youth Court for an order pursuant to s 53 of the Children and Young People (Safety) Act 2017 (SA) that the child be placed under the guardianship of the Chief Executive Officer of the Department. In 2019, there was a trial in the Youth Court, following which that Court ordered that the child be placed under the guardianship of the Chief Executive Officer of the Department of Child Protection for a period of 12 months. In March 2021, there is to be a trial as to whether that order is to be made permanent until the child is 18 years of age.
Allegations had been made by the applicant that the father of her child had engaged in various forms of abuse against the child.
The applicant claims that the respondent acted dishonestly and negligently in carrying out her duties. In particular, the applicant alleged that the respondent made false and dishonest statements concerning the applicant at a meeting on 17 January 2019. The applicant further claimed that the respondent acted dishonestly by misrepresenting and altering crucial facts in submissions that she authored for the Department in the Youth Court trial. Thirdly, the applicant alleged the respondent was negligent in failing to take into account past abuse allegations and a police interview held on 17 November 2017. Lastly, the applicant alleged that the respondent authored trial documents which were negligent and reckless.
The respondent denied the allegations of the applicant and further pleaded that s 74(2) of the Public Sector Act 2009 (SA) (PSA) acted as a complete defence to the claims. Section 74(2) provides that no civil liability attaches to a person to whom this section applies for an act or omission in the exercise or purported exercise of official power or functions. Instead, pursuant to s 74(3) of the PSA, such liability lies against the Crown. The respondent also claimed that no civil suit lay against the respondent in her capacity as a witness to the Youth Court proceedings.
The applicant declined to join the Crown as a respondent in the proceedings and maintained her action solely against the respondent.
The respondent applied for summary judgment, on the basis that there was no reasonable basis for the action.
The Magistrate awarded summary judgment in favour of the respondent. The applicant seeks to review that decision.
Held:
1. The application for review is dismissed and the judgment of the Magistrate is affirmed.
2. There was no reasonable basis for prosecuting the claim. There was also no reasonable basis for the action.
3. A Court should not award summary judgment lightly. Exercise of the power required a practical assessment whether the applicant had real, as opposed to merely fanciful prospects of success: Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161 applied.
4. The claims of the applicant which were made in negligence or negligent misstatement must fail because of s 74(2) of the PSA. The respondent is entitled to the benefit of s 74(2) when exercising her powers or functions.
5. On the summary judgment application, it is assumed the factual circumstances underpinning the claim had been made out. Accordingly, claims of dishonesty were not defeated by s 74(2) as on the assumption that the respondent acted dishonestly, she is not entitled to the benefit of s 74(2).
6. The immunity granted to a witness or a party from civil suit operates to defeat all of the claims made by the applicant. No civil action can be maintained against a witnesss for giving false testimony. This immunity extends to evidence prepared, given, adduced or procured in the course of legal proceedings. All that is done out of court which is intimately connected with the evidence is also immune. The immunity applies even if what is alleged to have been done was done negligently, maliciously or dishonestly.
7. In any event, the applicant did not have any claim as any loss arose as a consequence of the orders of the Youth Court and not from any acts or omissions of the respondent. The respondent’s duties and functions under the Children and Young People (Safety) Act 2017 (SA) were inconsistent with the maintenance of a duty of care owed to the applicant.
Magistrates Court Act 1991 (SA) s 8(1)(d), 32, 38; Public Sector Act 2009 (SA) s 6, 74, 166(3); Magistrates Court (Civil) Rules 2013 (SA) r 8, 65, 86; Uniform Civil Rules 2020 (SA) r 1.4, 144.2, 331.3(g); Children and Young People (Safety) Act 2017 (SA) s 4, 5, 7, 34, 53, 166(3); Federal Court of Australia Act 1976 (Cth) s 31A, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2010] HCA 28; (2010) 241 CLR 118, applied.
Harradine v District Court of South Australia [2012] SASC 96; Gillott v District Court of South Australia [2019] SASC 132; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Griggs v Noris Group of Companies (2006) 94 SASR 126, [2006] SASC 23; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; Rana v Hyatt Regency Hotel Ltd [2007] SASC 7; JT Nominees v Macks [2007] SASC 151; (2007) 97 SASR 471; Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532; Australian National Airlines Commission v Newman (1987) 162 CLR 466; Stock v Grubb (1985) 39 SASR 1; Trobridge v Hartley [1955] HCA 68; (1955) 94 CLR 147; Hamilton v Halesworh [1937] HCA 69; (1937) 58 CLR 369; Webster v Lampard [993] HCA 57; (1993) 177 CLR 598; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Chahoud v Koleda [2008] NSWSC 1060; Ollis v New South Wales Crime Commission [2007] NSWCA 311; Commonwealth of Australia v Griffiths [2007] NSWCA 370; Watson v McEwan [1905] AC 480; Marrinan v Vibart [1963] 1 QB 528; Evans v London Hospital Medical College and others [1981] 1 All ER 715; X (Minor) v Bedfordshire County Council [1995] 2 AC 633; Hillman v Black [1996] SASC 5941; Richard Ian Hillman v Tania Leonie Black (1996) 67 SASR 490; Northern Territory v Mengel (1995) 185 CLR 307; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; Burton v Babb [2020] NSWCA 331; Greenberg v Australian Ice Hockey Federation Inc (1995) 179 LSJS 472; Maric v Ericsson Australia Pty Ltd [2020] FCA 452, considered.
C v M
[2021] SADC 29
Civil
Introduction
This is a review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) of a minor civil action in which the Magistrate entered summary judgment in favour of the respondent. The applicant is dissatisfied with the judgment of the Magistrate and has made an application for a review of the matter.
In these proceedings, the applicant seeks declaratory relief and damages from the respondent, a social worker employed by the Department of Child Protection. The applicant alleges that the respondent acted dishonestly and in breach of her duty of care.
In the Magistrates Court, the respondent sought summary judgment on two bases. First, she submitted that by reason of s 74(2) of the Public Sector Act 2009 (SA) (PSA), no action lay against her as a public sector employee. Pursuant to s 74(3), any action which, but for s 74(2) lay against her, instead lay against the Crown in right of the State of South Australia. Secondly, the respondent submitted that in any event no reasonable basis for the action was disclosed in the applicant’s pleading.
The Magistrate observed that the applicant had refused to amend her claim so as to bring the claim against the State of South Australia.[1] The Magistrate held that the respondent was entitled to summary judgment on the basis that s 74(2) of the PSA precluded the pleaded claim being made against the respondent personally.[2] The Magistrate went on to find that in any event that pleading of the applicant did not disclose a reasonable basis for the action.[3]
[1] Reasons of the Magistrate at [13].
[2] Ibid.
[3] Ibid at [14].
The applicant in her Notice of Review to this Court submitted that s 74(2) of the PSA did not apply. The applicant further submitted that a reasonable basis for the action existed and the Magistrate, in her Reasons, wrongly addressed her first claim, contained in an affidavit dated 17 December 2019, when she ought to have addressed the revised claim contained in an affidavit dated 21 February 2020. Although leave had not been granted permitting the applicant to file the revised claim, both parties accepted that I should conduct the Review on the basis of the revised claim. That position was entirely reasonable as an application for summary judgment would, as a matter of course, be adjourned if a revised claim was to be filed.
During the course of the Review, I invited the applicant to amend her claim to substitute the State of South Australia for Ms M as the respondent. The Crown Solicitor, who was representing Ms M and would represent the State of South Australia, if it were joined, indicated that the respondent and the State would not oppose any such application and the State accepted that any action should be made against it and came within s 74(3) of the PSA. I adjourned the hearing of the Review to allow the applicant to consider and to take advice as to substituting the State for Ms M as the respondent. At the resumed hearing, the applicant again refused to make any application to amend her claim to substitute or join the State as a respondent to the action.
Application for Review
This review is conducted pursuant to s 38(6) to 38(9) of the Magistrates Court Act 1991 (SA). On this review, the Court may inform itself as it thinks fit and in doing so is not bound by the rules of evidence. The Court may also, if it thinks fit, rehear the evidence taken before the Magistrates Court. In hearing and determining this review, the Court must act according to equity, good conscience and the substantial merits of the case, without regard to technicality and legal form. It is important to note that this review is a review of the matter and not a review of the judgment.
The conduct of a minor civil action must be considered in the context of the statements made by Blue J in Harradine v District Court of South Australia[4] that the role of the Magistrate in such an action is that of an inquirer rather than managing an adversarial contest between the parties.
[4] [2012] SASC 96 at [40].
In Gillott v District Court of South Australia,[5] Peek J discussed the meaning of the phrase ‘equity, good conscience and substantial merits of the case’ and quoted from the decision of Olsson J in Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd,[6] in which His Honour noted that the meaning of that phrase must be construed by reference to the nature of the issues involved and, where appropriate, the clear purpose of any relevant statute. Olsson J went on to hold that in certain cases the phrase required that the Court should adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. In Griggs v Noris Group of Companies,[7] White J referred to the phrase in the context meaning the good sense and natural justice of the matter. At times, he held the expression that the decision maker was empowered to do whatever he or she might think necessary to achieve fairness between the litigants.
[5] [2019] SASC 132 at [40]-[46].
[6] (1994) 63 SASR 434 at 442.
[7] (2006) 94 SASR 126, [2006] SASC 23 at [31].
Given the nature of the minor civil review and its purpose to achieve an economical and efficient disposition of the matter, I consider that the phrase ‘equity, good conscience and essential merits of the case’ is used in the context described above, that being that the Magistrate is required to act according to good sense and the natural justice of the matter and to do whatever was necessary to achieve fairness between the parties in relation to their legal rights, eschewing legal, or other technicalities. Regard must be had to the substance of the claim and permitting the parties to have an opportunity to address the real issues in dispute.
The decision of this Court on review is final and is not subject to appeal pursuant to s 38(8) of the Magistrates Court Act.
As I am reviewing a decision of the Magistrate to grant summary judgment in favour of the respondent, if I allow the Review, I can rescind the judgment and substitute a judgment that I consider appropriate or remit the matter to the Magistrates Court for hearing or further hearing.[8]
[8] s 38(7)(d)(iii) of the Magistrates Court Act.
Conduct of the hearing in the Magistrates Court and findings of the Magistrate
The Magistrate granted leave to the respondent to file an application for summary judgment pursuant to rule 65 of the Magistrates Court (Civil) Rules 2013 (SA) (MCCR) as she considered there to be a substantial argument that the applicant’s claim was wholly unmeritorious.[9] The respondent filed a brief affidavit in support of her application, which relevantly annexed the judgment of the Family Court and the Order of the Youth Court, to which I will refer later in these Reasons. The applicant filed an affidavit on 21 February 2020 in which she set out her revised claim and a further two affidavits in which she set out her response to the application of the respondent. These affidavits were a mix of submission and fact.
[9] Reasons at [4].
The Magistrate correctly observed that a Court has a discretion to grant summary judgment where there is no reasonable basis for the action. The Magistrate further observed that the discretion should not be exercised lightly and must be exercised with great care and exceptional caution.[10] The Magistrate observed that the court must form a certain and concluded view that the proceeding would necessarily fail.[11] In deciding whether there is a reasonable basis for an action, the court should accept the allegations of facts contained in a pleading at face value.[12] As the Magistrate observed, where there are legal and factual issues that need to be determined to enable a party to succeed, summary judgment will fail even where the Court is of the view that the party is unlikely to succeed on the factual issues.[13]
[10] Reasons at [5] citing Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24].
[11] Spencer v Commonwealth [2010] HCA 28; (210) 241 CLR 118 at [53].
[12] Rana v Hyatt Regency Hotel Ltd [2007] SASC 7.
[13] Reasons at [5] citing Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [25].
The Magistrate found that the respondent was entitled to rely upon the immunity set out in s 74(2) of the PSA.[14] The Magistrate rejected an argument by the applicant that the respondent could not rely upon the immunity because it was alleged that she acted outside of her functions and that was a matter that must be determined at trial.[15]
[14] Reasons at [8]-[13].
[15] Reasons at [10].
In my view, the respondent’s immunity requires the acts or omissions which form the basis of the claim against her to have occurred in the exercise or purported exercise of official powers or functions. As the party relying on the immunity, she bears the onus of establishing these matters.
The Magistrate went on to examine the causes of action pleaded against the respondent and concluded that the claim should be struck out. I will not examine in detail the reasoning of the Magistrate as, in making these findings, she was considering the causes of action pleaded in the first version of the Claim, while it was accepted that I should consider the revised claim.
Background to the Claim
The applicant has a daughter, now aged 11.
The applicant does not reside with the father of her daughter.
From 2015, allegations have been made that the father had committed various forms of abuse of the daughter. The Department of Child Protection, amongst other agencies, became involved in the investigations of these allegations.
The father sought custody of his and the applicant’s daughter. A trial was held in the Family Court in late 2017 and in February 2018, the applicant was awarded custody and the father granted visitation rights.
In about May 2018, the Department of Child Protection sought and obtained from the Youth Court an order that the applicant’s daughter be removed from her care.
In September 2018, the respondent, a social worker and an employee of the Department of Child Protection, was appointed as the case worker assigned to the daughter.
On 17 January 2019, the applicant, with her support person, met with the respondent and her supervisor. Following that meeting, the applicant submitted an application to revoke the 6 month guardianship order and the Department sought a 12 month guardianship order.
A trial was held in the Youth Court in about August 2019, following which on 8 August 2019, the Youth Court made an order that the applicant’s daughter be placed under the guardianship of the Chief Executive of the Department for a period of 12 months.
In March 2021, the Youth Court is due to hear an application for a permanent guardianship order.
Claims made by the applicant
The applicant has made four separate claims in her Revised Claim.
First, the applicant alleged that the respondent made dishonest claims against her in the 17 January 2019 meeting. The applicant alleges that the respondent then authored misrepresentations in the submissions made by the Department in the application for the 12-month guardianship order, failed to correct these misrepresentations and continued to support the Department’s case. The applicant claims damages as a result of the distress from being separated from her daughter based on these falsities and her standing as a good mother being damaged.
Secondly, the applicant claimed that the respondent acted dishonestly and in breach of her duty of care by misrepresenting and changing crucial facts when authoring the submissions of the Department of Child Protection in the Youth Court proceedings.
Thirdly, the applicant claimed that the respondent was negligent in failing to view and consider a police interview when presenting to the Court the case for State guardianship.
Fourthly, the applicant claimed that the respondent authored trial documents and submissions which were negligent and reckless.
The respondent filed a brief defence in which she denied the allegations and pleaded that no cause of action lay against the respondent by operation of s 74 of the PSA. The respondent further submitted that she was entitled to an absolute immunity in relation to all causes of action as they involved evidence given or prepared for court proceedings. I gave the parties liberty to provide further submissions on the question of this immunity. Both parties provided further submissions on this issue.
Legal Principles
Summary Judgment
The application was brought prior to the introduction of the Uniform Civil Rules 2020 (UCR). The respondent relied on MCCR 8 and 86 in seeking the dismissal of the applicant’s claim.
MCCR 8 provides:
(1) Where a party wishes to obtain -
(a) summary judgment in, or the disposal of the whole or part of, an action, or
(b) immediate relief,
he or she may do so on interlocutory application accompanied by an affidavit specifying –
(c) that there is no reasonable basis for the action or defence.
(2) The Court may -
(a) enter judgment accordingly;
(b) grant the whole or part of the relief sought, and order that the action continue in relation to the part not disposed of;
(c) make an order for an early trial; or
(d) make any other order.
MCCR 86 provides that:
A party may apply to the Court for judgment in, or an order staying until further order, an action or proceeding that is scandalous, frivolous, oppressive, vexatious or otherwise an abuse of the process of the Court, or an order striking out a pleading of that nature.
The Magistrate ordered pursuant to UCR 1.4 that the MCCR apply to the determination of the application as the application had been made under those rules.[16] I note that the transitional provisions of the UCR provide that, where a step in the proceeding has been taken after the commencement of the rules, the UCR will apply.[17] A step in a proceeding or appellate proceeding includes a document filed, process issued, action taken or order made in the proceeding.[18] As a minor civil review is a review of the matter, rather than an appeal, I would be inclined to apply UCR 144.2 (which deals with summary judgment) as that represents the current law. However, in the present case, the application of the UCR does not make any difference to the result, as UCR 144.2 permits summary judgment to be granted:
144.2 (2) …
a) On a claim where there is no reasonable basis for prosecuting the claim.
[16] Reasons at [3].
[17] UCR 1.4(1)((a)(ii).
[18] UCR2.1.
I note that UCR 144.2 applies to minor civil actions by reasons of rule 331.3(g).
As Doyle J observed in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,[19] the approach to be taken in relation to applications for summary judgment should be considered in light of the decision of the High Court in Spencer v Commonwealth.[20]Although the High Court in Spencer was considering the power to award summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) which used the words “no reasonable prospects of success,” there is, as Doyle J found,[21] no material difference between those words and “no real basis for prosecuting the claim”, which are now used in Uniform Civil Rule 144(2)(2)(a) and are very similar to the words used in MCCR 8 (no reasonable basis for the action).
[19] at [56].
[20] [2010] HCA 28; (2010) 241 CLR 118 at [43].
[21] [2020] SASC 161 at [53] and [56].
The approach to a summary judgment application, following Spencer, is, as stated by Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,[22] (citations omitted):
[i]t can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
[22] Ibid at [59].
It is arguable for the purposes of MCCR 86 that an abuse of process may include a case where there are no reasonable prospects of success.[23] That issue has little consequence in the present case as the power in MCCR 8 expressly applies to a case where there are no reasonable prospects of success (i.e. where there is no reasonable basis for the action) and further specifies that any other order may be made, which would include an order for striking out a claim.
[23] Ibid at [65] citing JT Nominees v Macks [2007] SASC 151; (2007) 97 SASR 471 at [30].
Immunity under s 74(2) of the PSA
For the purposes of the PSA, the respondent is a person employed in an Administrative Unit and is treated as employed by the Chief Executive of the Administrative Unit on behalf of the Crown.[24] An Administrative Unit includes a Department.[25] As such, the respondent is a public sector employee within the meaning of s 3 of the PSA and for the purposes of that Act.
[24] s 3(2).
[25] s 3(1).
Section 74 of the PSA provides:
(1) This section applies to -
(a) a public official; and
(b) a public sector employee;
(c) …
(d) …
(2)Subject to this Act, no civil liability attaches to a person to whom this section applies for an act or omission in the exercise or purported exercise of official power or functions.
(3)An action that would, but for this subsection (2) lie against a person lies instead against the Crown ...;
(4)This section does not prejudice rights of action of the Crown or a public sector agency in respect of an act or omission of a person not in good faith.
(5)…
(6)…
The applicant submitted at the hearing of the application and on the review that the words “Subject to this Act” created an exception to the immunity granted to the public sector employee from personal suit. Clearly, the exception only applies where the PSA provides that the employee is personally liable. Section 74(4) is such a case. The Crown has a right of action against an employee who has not acted in good faith. The PSA also permits action to be taken against an employee by a public sector agency in relation to employment consequences (e.g. termination or disciplinary action) of their conduct. However, nothing in the PSA permits an action to be brought personally against a public sector employee by a third party.
The applicant also submitted that the code of conduct created enforceable claims by a third party against a public sector employee. Section 6 of the PSA provides that public sector employees must observe the public sector code of conduct. Again, the code of conduct does not create any direct rights of action against the public sector employee. Contraventions of the code may have employment consequences for the employee, but do not create a right of action for a third party against that employee.
The second issue that arises in relation to the application of s 74(2) concerns the interpretation of the phrase “for an act or omission in the exercise or purported exercise of official powers or functions” and whether that phrase limits the circumstances in which the immunity can apply. The applicant submitted that s 74(2) cannot apply to grant immunity where the relevant public sector employee acts outside of their duties and functions.
Immunities such as those granted in s 74(2) are construed strictly.[26] In Trobridge v Hartley,[27] it was held that expressions such as “in pursuance of an Act” or “carrying an Act into effect” requires the act to be done in the bona fide belief that it is authorised by the Act and in a bona fide attempt to give effect to the Act. The burden of proving an indirect motive or mala fides lies upon the applicant.[28] In Webster v Lampard,[29] the High Court considered an immunity expressed in the following terms “no action shall be brought against any person … for any act done or in pursuance or execution or intended execution of any Act or any public duty or authority.[30] The High Court held that the defence was not available to defeat an actual well founded claim if it appeared that the defendant was in fact motivated solely or predominantly by a wrong or indirect motive.
[26] Selway “The Constitution of South Australia” 1997 Federation Press at [14.5.3] citing Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532; Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471; Stock v Grubb (1985) 39 SASR 1.
[27] [1955] HCA 68; (1955) 94 CLR 147 at [11].
[28] Hamilton v Halesworh [1937] HCA 69; (1937) 58 CLR 369.
[29] [993] HCA 57; (1993) 177 CLR 598.
[30] Ibid at 601.
The general onus of establishing a designated connection with the actual or intended course of official duty lies with a respondent seeking to invoke the defence,[31] (i.e. the respondent must bring themselves within the words of the statute), but the onus of establishing that the respondent’s ostensible pursuit of public duty was actuated by a wrong or indirect motive lies on the plaintiff asserting it.[32]
[31] Ibid at 606.
[32] Ibid at 607.
Immunity for false testimony
No civil suit lies against a witness or party who has given false testimony.
In Cabassi v Vila,[33] Rich ACJ held in respect of such false testimony:
Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way. The plaintiff’s only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute. An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury.
[33] [1940] HCA 41; (1940) 64 CLR 130 at 139.
Starke J reached the same conclusion and held that it did not matter whether the action was for defamation or malicious prosecution, deceit or conspiracy, the rule of law is that no action lies against a witness in respect of evidence prepared, given, adduced or procured in the course of legal proceedings.[34] The remedy against a witness who has given false testimony is by means of the criminal law and the punitive process of contempt of court.[35]
[34] Ibid at 141.
[35] Ibid.
As is evident from the above passage, the witness has an absolute immunity for anything that is said or done in court.[36] The immunity is the same as that which grants immunity to jurors, judges and advocates in that capacity. Therefore, all that a witness does in Court must be immune and all that is done out of court which is so intimately connected with the evidence must also be immune.[37] As the plurality held in D’Orta-Ekenaike v Victorian Legal Aid:[38]
All such actions [based on false testimony of a witness] were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.
[36] D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39]; Chahoud v Koleda [2008] NSWSC 1060 at [42].
[37] D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39]; Chahoud v Koleda [2008] NSWSC 1060 at [44]; Ollis v New South Wales Crime Commission [2007] NSWCA 311 at [46]-[48]; Commonwealth of Australia v Griffiths [2007] NSWCA 370 at [42] and [84].
[38] D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [43].
The exceptions to the immunity include prosecutions for perjury, contempt of court and for perverting the course of justice and where there is clear statutory provision to the contrary.[39]
[39] Commonwealth of Australia v Griffiths [2007] NSWCA 370 at [46].
Preliminary examination of witnesses to find out what they can prove is protected.[40] The immunity extends to protecting witness in the preparation of their evidence.[41] The immunity also extends to statements prior to the commencement or proceedings provided that the statement is made for the purpose of a possible action or prosecution and at a time a possible action or prosecution is being considered.[42] In Hillman v Black,[43] Matheson J (Prior and Perry JJ not deciding), accepted the above statement as correct and said that the immunity protected two doctors who examined a complainant following an allegation of sexual assault, because there was immediacy with possible proceedings.
[40] Watson v McEwan [1905] AC 480 at 487.
[41] Marrinan v Vibart [1963] 1 QB 528.
[42] Evans v London Hospital Medical College and others [1981] 1 All ER 715 at 721; X (Minor) v Bedfordshire County Council [1995] 2 AC 633 at 755.
[43] [1996] SASC 5941 (under the name Richard Ian Hillman v Tania Leonie Black (1996) 67 SASR 490 at 504.
Determination of application for summary judgment
The first claim made by the applicant is that the respondent dishonestly claimed at the meeting held on 17 January 2019 that the applicant had serious mental health issues and for that reason the Department was not planning on any reunification of the mother and daughter.
Two matters are unclear about this claim. First, the nature of the claim being pursued by the applicant is unclear. Adopting a position most favourable to the applicant, I will assume that the applicant is claiming in deceit and negligent misstatement or misfeasance in public office.
Secondly, it is unclear what loss the applicant is claiming and how that loss arose. Deceit or negligent misstatement requires a person, usually the plaintiff, to have been induced by the representation to act in a certain way. In the present case, there is no allegation that anyone acted on the representation to the applicant’s detriment. I cannot see how any alternate framing of the claim could lead to any loss. The only persons at the 17 January 2019 meeting were the applicant and her support person and the respondent and her supervisor. The allegations made in the Claim are that the respondent acted in certain ways. The respondent cannot have induced herself to have so acted. It is not alleged that as a result of that meeting, someone else acted in a way that they would not otherwise have acted. No binding determination or decision was made at that meeting. At most, the respondent set out her views on guardianship.
The loss that the applicant is claiming she suffered occurred, and can only have occurred, as a result of the decision of the Youth Court. That is how the applicant put her claim. The claim for negligent misstatement or deceit must therefore fail as there is no loss arising from the alleged statements that were made by the respondent on 17 January 2019.
The same reasoning would apply if the claim was construed as a claim of misfeasance in public office. An essential ingredient of the cause of action is that the alleged invalid or unauthorised act has caused loss or harm to the applicant.[44] I cannot see that there has been any invalid or unauthorised act committed by the respondent at the 17 January 2019 meeting. Further, no loss or harm was caused from any such act (if it existed), the alleged harm or loss coming from the decision of the Youth Court.
[44] Northern Territory v Mengel (1995) 185 CLR 307 at 370.
Insofar as the first claim raised allegations of negligence, I do not consider that the respondent owed a duty of care to the applicant. In Sullivan v Moody,[45] the High Court considered the existence of a duty of care to a third party where a defendant is subject to statutory obligations that constrain the exercise of that power.[46] The High Court held that there is no duty of care where the discharge of the statutory duties is inconsistent with the existence of a duty to protect or take care of the interests of a third party.[47] The Children and Young People (Safety) Act, 2017 (SA) (CYPSA) imposes statutory obligations on the respondent. Section 5 of the CYPSA recognises that it is the duty of every person in the State to safeguard and promote the outcomes of the Act set out in s 4(2) (inter alia to ensure children are safe from harm). Section 7 states that the paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm. In my view, such obligations are inconsistent with the existence of a duty of care to third parties such as the applicant.
[45] [2001] HCA 59; (2001) 207 CLR 562.
[46] Ibid at [60].
[47] Ibid at [62].
It follows for all the reasons discussed above that there is no reasonable basis for prosecuting the claim (and no reasonable basis for the claim).
Further, I consider that the respondent is entitled to rely upon the absolute immunity provided to a witness in a proceeding. If any actionable false statement was made as alleged, it was preparatory to the Youth Court trial and the respondent is entitled to an absolute indemnity. The statement, if it were found to have been made, was intimately connected with the evidence adduced at the Youth Court trial. The applicant submitted that the immunity did not apply, because it was a common law immunity and the claims made by the applicant were claims in equity. I do not accept that submission for a number of reasons. First, the claims made by the applicant are in fact common law claims: negligence or negligent misstatement and deceit. Secondly, the immunity covers all causes of action and is not limited to claims at common law and not claims in equity. Thirdly, the consequences for giving false testimony lie in the criminal law and do not give rise to a cause of action.
I would not, on an application for summary judgment, have found that s 74(2) of the PSA operated as a defence to the action. For the purposes only of the application, I would have accepted the allegation that the respondent acted dishonestly.[48] The alleged dishonesty of the respondent is not a matter that can be determined on the summary judgment application.[49] If the respondent was acting dishonestly, I do not consider that she could have been acting in the exercise or purported exercise of official powers or functions. A person acting dishonestly is not exercising their duties and functions. In Burton v Babb,[50] a case referred to by the applicant, the Court held that the personal liability of a Crown employee for a tort (in that case the tort of malicious prosecution) may well depend on whether the conduct relied on to establish the tort was committed in the execution of the duty. If a prosecution was instituted maliciously (or dishonestly), it has not been instituted in the execution of the duty, but for an ulterior purpose and the protection does not apply. Whilst the immunity being considered in that case required the act to be done in good faith for the purpose of executing any relevant law,[51] I consider the requirement that the conduct be committed in the execution of the duty equally applies to s 74(2) of the PSA.
[48] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608.
[49] Burton v Babb [2020] NSWCA 331 at [19].
[50] Ibid at [20].
[51] Ibid at [9].
The onus lay on the applicant to establish that the respondent was acting dishonestly and therefore was not entitled to rely on the indemnity, but in circumstances where the respondent did not file any affidavit denying the allegations and the applicant had, in her affidavit, asserted such dishonesty and had provided some detail of the allegation, I would find for the purposes of the summary judgment application, that the applicant had discharged the onus.
Therefore, s 74(2) of the PSA cannot be employed as the basis of summary judgment. However, for the reasons that I have stated, there is no reasonable basis for prosecuting the claim.
The second claim made by the applicant is that the respondent acted dishonestly by misrepresenting facts and altering crucial facts in submissions that she authored for the Department for the purpose of the Youth Court trial.
In my opinion, the submissions are clearly preparatory to and intimately connected with the Youth Court trial. The respondent is therefore entitled to an absolute indemnity in respect of those submissions.
To the extent necessary, I would have also found that there was no reasonable basis for claiming loss had occurred as a result of the actions of the respondent. Any loss that occurred was a result of the decision of the Youth Court following the trial.
I would not have found, on a summary judgment application that s 74(2) of the PSA precluded the claim as I would have to accept for the purpose of the application that the respondent acted dishonestly.
In any event, for the reasons that I have stated, there is no reasonable basis for prosecuting the second claim (and no reasonable basis for the claim).
The third claim is in negligence. The applicant alleges that the respondent was negligent in failing to take into account past abuse allegations and a police interview held on 17 November 2017.
This claim cannot succeed on a number of bases.
First, the immunity provided by s 74(2) of the PSA applies. The allegations contained in the claim are to the effect that in carrying out her duties and functions, she negligently failed to consider certain matters. There is no reason why s 74(2) would not apply to such a case.
Secondly, the loss has arisen from the orders made by the Youth Court and not from any acts or omissions of the respondent.
Thirdly, the claim is intimately connected with the evidence adduced at the Youth Court trial. That is, the claim must be that in preparing submissions and in preparation for the Youth Court, the respondent failed to consider and include certain matters. That, in my view, falls clearly within the absolute immunity given to a witness in connection with court proceedings.
Fourthly, in accordance with the decision in Sullivan v Moody[52] (discussed above), no duty of care is owed by the respondent to the applicant.
[52] [2001] HCA 59; (2001) 207 CLR 562 at [60]-[62].
There is no reasonable basis for prosecuting the third claim (and no reasonable basis for that claim).
The fourth claim falls into same category. Although it is not clear what cause of action is relied upon by the applicant in this claim, I am prepared to accept it as raising a claim in negligence against the respondent in the preparation of submissions for the Youth Court trial.
In these circumstances, I find that the immunity provided for in s 74(2) applies in favour of the respondent.
Secondly, the loss has arisen from the order of the Youth Court and not from the acts or omission of the respondent.
Thirdly, for the reasons that I have expressed previously, the impugned submissions were for use in the Youth Court trial and therefore fall clearly within the absolute immunity given to a witness in connection with court proceedings.
Fourthly, the respondent does not owe a duty of care to the applicant (see Sullivan v Moody, discussed above).
There is no reasonable basis for prosecuting the fourth claim (and no reasonable basis for the claim) and as I have found, for any of the claims against the respondent.
Miscellaneous matters
The applicant sought a declaration in the proceedings as well as damages. I consider that a declaration is available in minor civil action. Section 8(1)(d) of the Magistrates Court Act provides that the Court in a minor civil proceeding may grant any form of relief necessary to resolve the matter. Section 32 of the MCA provides that the Court, on matters within its jurisdiction, may make binding declarations of right. These provisions, in my view, clearly permit a declaration to be made in a minor civil action: see Greenberg v Australian Ice Hockey Federation Inc. [53]
[53] (1995) 179 LSJS 472.
However, as I have found that there is not a reasonable basis for prosecuting any of the claims made by the applicant, it follows that there is no basis for granting any declaratory relief.
The respondent also raised the possible application of s 166(3) CYPSA. Section 166(3) provides:
(3)A person who provides information or a document to an inquiry under this Act has the same protection, privileges and immunities as a witness in proceedings before the Supreme Court.
The proceedings in the Youth Court were proceedings under the CYPSA.[54]
[54] s 91 of the CYPSA.
The word “inquiry” is not defined in the Act or used in the Act. There are several instances in the Act, for example s 34, where an investigation is carried out under the Act.
It appears to me that there is a difference between an inquiry and a trial. The latter is a more formal process, usually held at a time when the relevant facts have been ascertained. Although “inquiry” is a protean word that will take its meaning from its context, the Dictionary meaning of inquiry is “an investigation into a matter; the act of inquiry or seeking information by questioning; interrogation”.[55] To similar effect are the comments by Steward J in Maric v Ericsson Australia Pty Ltd[56] where his Honour held that an inquiry involves an investigation or examination made for the purpose of acquiring knowledge or information.
[55] Macquarie Dictionary, 6th ed, p765.
[56] [2020] FCA 452 at [45].
In my view, an “inquiry”, when referred to in the CYPSA is distinct from a trial.
As such, as I have found that the conduct of the respondent which is complained about in the Claim is intimately connected to the Youth Court trial, I would have found that s 166(3) did not apply.
However, if I was wrong in so characterising the conduct of the respondent and if her conduct was properly characterised as not being connected or related to the trial, then in my view it would have come within s 166(3) as being information provided to an inquiry. Therefore, the protection provided by s 166(3) would, in that event, have applied to the respondent to defeat the claims of the applicant.
The applicant submitted s 166(3) should not apply where the respondent committed wilful or dishonest acts. That is, the section could not be read as providing an absolute immunity to the party that came within the terms of the section. I do not accept that submission. Section 166(3) provides the same protection, privileges and immunities as a witness in proceedings before the Supreme Court. As I observed earlier in these Reasons, such a witness has an absolute immunity from civil suit and is liable for criminal sanctions for false testimony.
Conclusion
For the reasons that I have provided, I dismiss the application for review and affirm the judgment of the Magistrate.
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