Commonwealth of Australia v Griffiths - [2007] NSWCA 370

No judgment structure available for this case.

Reported Decision: 70 NSWLR 268

Appeal Outcome: Special leave refused with costs by the High Court - 13 June 2008

New South Wales

Court of Appeal

CITATION: Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370

HEARING DATE(S): 13 September 2007

JUDGMENT DATE:
14 December 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 2; Young CJ in Eq at 144

DECISION: 1. Appeal allowed; 2. Cross-appeal dismissed; 3. Set aside the following orders made by Rothman J: (i) order (a); (ii) order (b) insofar as Rothman J quashed the orders of Master Harrison made on 25 August 2004; (iii) order (d) dismissing the application of the second defendant (the Commonwealth of Australia) for a stay of proceedings; (iv) order (e) ordering the second defendant (the Commonwealth of Australia) to pay one third of the costs of the plaintiff (Mr Griffiths) on the motion before Master Harrison and on appeal to Rothman J; 4. (a) vary order (1) made by Master Harrison so that the order now made is that the proceedings against the first and second defendants (Mr Ballard and the Commonwealth of Australia) are dismissed; (b) confirm order (2) (in respect of costs) made by Master Harrison; 5. Order that the plaintiff (Mr Griffiths) pay the costs of the first and second defendants (Mr Ballard and the Commonwealth of Australia) on the appeal before Rothman J; 6. Order that the plaintiff (Mr Griffiths) pay the costs of the second defendant (the Commonwealth of Australia) on the appeal and of the first defendant (Mr Ballard) on the cross-appeal.

CATCHWORDS: EVIDENCE – witness immunity – immunity where conduct sufficiently connected and preparatory to proceedings – statutory analyst undertook analysis of substance– s 37A Poisons and Therapeutic Goods Act 1966 – certificate of analysis issued under Drug Misuse and Trafficking Act s 43 – certificate issued for criminal prosecution – analyst manipulated testing of substance – plaintiff argued testing undertaken at investigative phase not forensic phase - whether analyst protected by principle of witness immunity - EVIDENCE – witness immunity – underlying rationale – ultimate consideration finality of judgments – proceedings would require retrial of evidence of analyst – whether inconsistent with finality of judgment - VICARIOUS LIABILITY – immunity of wrongdoer – employer seeking to rely on immunity of employee – whether immunity extends to protect a person who is otherwise vicariously liable - NEGLIGENCE – duty of care – imposition of duty of care – court would not ordinarily impose duty of care where duty would impose conflicting claims or obligations and indeterminacy of liability - analyst appointed by Minister under statute – proof of substance provided by analyst fundamental to prosecution – whether trial judge erred in finding arguable case that duty of care existed - TRADE PRACTICES – trade or commerce – issue of statutory certificate – certificate issued to prosecuting authorities – certificate certified content of substance for purposes of criminal proceedings – content of certificate related to witness’ evidence – certificate issued for fee – whether certificate issued in trade or commerce - PROCEDURE – summary judgment – inappropriate where real question to be tried

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 ss 24, 43
Poisons and Therapeutic Goods Act 1966 ss 37A, 37B
Supreme Court Rules 1970 Pt 13 r 5, Pt 15 r 26
Trade Practices Act 1974 (Cth) ss 2A, 52

CASES CITED: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported)
Bell v The State of Western Australia [2004] WASCA 2
Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594
Cowell v Corrective Services Commission of New South Wales & Anor (1988) 13 NSWLR 714
Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435
Darling Island Stevedoring and Lighterage Company Limited v Long [1957] HCA 26; (1957) 97 CLR 36
De Bruyn v South Australia (1990) 54 SASR 231
Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62
Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237
D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1
Evans v London Hospital Medical College & Ors [1981] 1 All ER 715
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125
Griffiths v Ballard & 2 Ors [2004] NSWSC 763
Griffiths v Ballard [2005] NSWSC 1350
Griffiths v Ballard [2006] NSWSC 245
Hillman v Black & Ors (1996) 67 SASR 490
Jamieson and Brugmans v R [1993] HCA 48; (1993) 177 CLR 574
Mann v O’Neill [1997] HCA 28; (1997) 191 CLR 204
Marrinan v Vibart & Anor [1963] 1 QB 528
Meadow v General Medical Council [2007] QB 462
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110
Ollis v New South Wales Crime Commission [2007] NSWCA 311
Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295
Plimer v Roberts & Anor (1997) 80 FCR 303R v Piggott, Griffiths & Simeon [2002] NSWCCA 218
R v Skinner (1772) Lofft 54; (1772) 98 ER 529
Rees v Sinclair [1974] 1 NZLR 180
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 81 ALJR 1773
Silcott v Commissioner of police of the Metropolis (1996) 8 Admin LR 633
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Taylor v Director of the Serious Fraud Office [1999] 2 AC 177
Watson v M’Ewan [1905] AC 480
Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598
X (Minors) v Bedfordshire County Council [1995] 2 AC 633

PARTIES: Commonwealth of Australia (Appellant)
John Henry Griffiths (First Respondent)
State of New South Wales (Second Respondent)

FILE NUMBER(S): CA 40260/06

COUNSEL: S Gageler SC; G Kennett (Appellant)
R Kenzie QC; S Prince (First Respondent)
Submitting appearance (Second Respondent)

SOLICITORS: Blake Dawson Waldron (Appellant)
Steve Masselos & Co as agent for John M O'Connor & Co (Brisbane) (First Respondent)
IV Knight, Crown Solicitor (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20188/03

LOWER COURT JUDICIAL OFFICER: Rothman J

LOWER COURT DATE OF DECISION: 10 April 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Griffiths v Ballard [2006] NSWSC 245

- 36 -

CA 40260/06
MASON P
BEAZLEY JA
YOUNG CJ in Eq

14 December 2007

Commonwealth of Australia v John Henry Griffiths & Anor

Headnote

Drug Misuse and Trafficking Act

Poisons and Therapeutic Goods Act

Trade Practices Act

Held per BEAZLEY JA (MASON P and YOUNG CJ in Eq agreeing):

Summary disposal of proceedings

Dey v Victorian Railway Commissioners

General Steel Industries Inc v Commissioner for Railways (NSW) & Ors

Webster & Anor v Lampard

Air Services Australia v Zarb

Is Mr Ballard protected by witness immunity?

Watson v M’Ewan [1905] AC 480; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Evans v London Hospital Medical College & Ors [1981] 1 All ER 715; Hillman v Black & Ors (1996) 67 SASR 490; Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435; D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1 (considered)

Marrinan v Vibart & Anor

Ollis v New South Wales Crime Commission

D’Orta-Ekenaike v Victoria Legal Aid & Anor

Cabassi v Vila

(4) Mr Ballard gave evidence about all of the tests he conducted and there was no suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. There was no possible basis to suggest his earlier or later testing was carried out for any other purpose unassociated with the prosecution of Mr Griffiths: [92]

D’Orta-Ekenaike v Victoria Legal Aid & Anor

Is AGAL protected from vicarious liability by Mr Ballard’s immunity?

Parker v The Commonwealth

Cowell v Corrective Services Commission of New South Wales & Anor

De Bruyn v South Australia

Bell v The State of Western Australia

Darling Island Stevedoring and Lighterage Company Limited v Long

Is AGAL protected from suit for its direct liability?

D’Orta-Ekenaike v Victoria Legal Aid & Anor

(8) Witness immunity is absolute unless a matter falls within one of the recognised exceptions or there is a clear statutory provision that excludes the immunity. There is nothing in the Trade Practices Act that provides a basis for excluding the immunity such that AGAL and Mr Ballard are immune from the provisions of the Act: [121]

Jamieson and Brugmans v R [1993] HCA 48; (1993) 177 CLR 574 (cited)

Mr Ballard and AGAL’s alleged duty of care
(9) AGAL, by the employment of analysts who are appointed by the Minister under the Poisons and Therapeutic Goods Act , plays an integral role in law enforcement. To impose a duty of care would place conflicting claims or obligations on the carrying out of their functions and would potentially give rise to indeterminate liability. The same considerations apply to Mr Ballard such that he also did not owe a duty of care to Mr Griffiths: [127]-[131]

Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 (applied)

Whether certificate of analysis issued in trade or commerce

CA 40260/06

MASON P
BEAZLEY JA
YOUNG CJ in Eq

14 December 2007

Commonwealth of Australia v John Henry Griffiths & Anor

Judgment

1 MASON P: I agree with Beazley JA.

2 BEAZLEY JA: This appeal arises out of a motion brought pursuant to Pt 13 r 5 and Pt 15 r 26 of the Supreme Court Rules 1970 to dismiss or strike out, respectively, the first respondent’s (Mr Griffiths) statement of claim. Mr Griffiths has claimed damages against Peter Ballard, the Commonwealth of Australia and the State of New South Wales, for injury and loss he alleges he sustained arising out of a false or misleading statement in a certificate of analysis prepared and signed by Mr Ballard, an analyst appointed pursuant to s 37A of the Poisons and Therapeutic Goods Act 1966 (the Poisons and Therapeutic Goods Act).

3 The certificate of analysis identified a substance which had been seized by police on or about 2 or 3 July 1999 from premises operated by Mr Griffiths as a laboratory, as the prohibited substance methcathinone notwithstanding that the tests conducted by Mr Ballard gave inconclusive results for methcathinone. Mr Griffiths was prosecuted and found guilty of knowingly taking part in the manufacture of not less than the commercial quantity of a prohibited drug. However, the conviction was overturned on appeal and an acquittal entered by the New South Wales Court of Criminal Appeal: R v Piggott, Griffiths & Simeon [2002] NSWCCA 218.

4 The essential issue which arises on the appeal is whether the Commonwealth and Mr Ballard are amenable to suit, or whether they are protected by the operation of the principles of witness immunity.

The background to the appeal

5 The appeal with which this Court is concerned is an appeal from orders made by Rothman J on 10 April 2006: Griffiths v Ballard [2006] NSWSC 245. His Honour’s reasons are contained in his judgment dated 22 December 2005: Griffiths v Ballard [2005] NSWSC 1350. The proceedings before his Honour involved an appeal from the decision of Master Harrison (as her Honour then was) of 25 August 2004, in which her Honour made orders dismissing the proceedings brought by Mr Griffiths against Mr Ballard and the Australian Government Analytical Laboratories (AGAL), which was conducted by the Commonwealth: Griffiths v Ballard & 2 Ors [2004] NSWSC 763.

6 The effect of Rothman J’s orders was to dismiss the proceedings against Mr Ballard, but to leave in place the proceedings brought against AGAL. The appeal, (in respect of which leave to appeal has been granted) is against his Honour’s refusal, in effect, to strike out the statement of claim as against AGAL.

7 Mr Griffiths has brought a cross-appeal challenging the dismissal of the proceedings against Mr Ballard.

8 The State of New South Wales has filed a submitting appearance, save as to costs.

9 As the proceedings came before the court for summary dismissal or strike out, the relevant facts for consideration are those pleaded in the statement of claim, together with the additional facts indisputably established by the evidence adduced by the parties. The parties have agreed that the relevant pleading is a proposed second further amended statement of claim (the amended pleading), which was the pleading upon which the trial judge considered the motion.

10 Part 13 r 5 of the Supreme Court Rules (as then in force) provided:

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) no reasonable cause of action is disclosed,

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading,

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.

11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless” or “would involve useless expense”: see General Steel Industries at 129.

12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602:

“… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.” (Citations omitted)

Background facts

13 The appellant, the Commonwealth of Australia, conducts the analytical laboratories, AGAL, and within the auspices of AGAL conducts a unit known as the Australian Forensic Drug Laboratory. I will refer to the appellant as AGAL.

14 Mr Griffiths is a qualified pharmacist whose work relevantly involved the development of pharmaceuticals for potential sale, both within Australia and overseas. On about 2 or 3 July 1999, the New South Wales State police seized a quantity of substances from industrial premises at Castle Hill that were operated by Mr Griffiths. Thereafter, on 7 July 1999, Mr Griffiths was arrested and charged under s 24 of the Drug Misuse and Trafficking Act 1985 (the Drug Misuse and Trafficking Act) with being knowingly concerned in the manufacture of a prohibited drug, namely, methcathinone.

15 The seized substances were provided to the Australian Forensic Drug Laboratory of AGAL for analysis. Mr Ballard was the analyst assigned to undertake the analysis of the seized substances. He is an authorised analyst under s 37A of the Poisons and Therapeutic Goods Act. He is also authorised to provide certificates of analysis under the Drug Misuse and Trafficking Act. He was employed as an analyst by AGAL and thus was an employee of the Commonwealth.

16 Mr Ballard undertook the analysis of the seized substance at some time between 6 July and 5 August 1999 and on 7 September 1999 issued a certificate of analysis pursuant to s 43 of the Drug Misuse and Trafficking Act (the certificate of analysis) that stated that the seized substance was methcathinone. The certificate of analysis was used by the Commonwealth Director of Public Prosecutions (the DPP) in the prosecution of Mr Griffiths.

17 Mr Griffiths stood trial and was found guilty by a jury on 15 June 2001 and remained in custody until 26 October 2001. Mr Griffiths appealed to the Court of Criminal Appeal. The appeal was upheld and a verdict of acquittal was entered. Putting the matter in general terms, which is sufficient for present purposes, the basis for the acquittal was that Mr Ballard had manipulated the testing of the substance so as to produce an analysis that the substance was methcathinone. It is not contended in these proceedings that he did so intentionally or fraudulently.

18 Mr Griffiths commenced proceedings against, relevantly, the Commonwealth and Mr Ballard, alleging that each had breached a duty of care that each owed to him, by the issue of the certificate of analysis which was false or wrong and that he had suffered loss and damage as a result. Mr Griffiths also brought a claim under the Trade Practices Act 1974 (Cth) (the Trade Practices Act) and a claim for conversion of the seized substance and for misfeasance in public office. The claims for conversion and for misfeasance in public office have been withdrawn.

19 In pleading the existence of a duty of care, Mr Griffiths alleged that AGAL knew, or ought reasonably to have known, that the information, and relevantly, the certificate of analysis, that AGAL provided to the police or the DPP would be relied upon by the DPP in determining whether or not to prosecute or to continue to prosecute the criminal proceedings against him. It was also alleged that AGAL knew, or ought reasonably to have known, that the DPP relied on AGAL to exercise all reasonable care in the conduct of its analyses so as to correctly identify the seized substance and to fully and accurately advise the police or the DPP of the method and results of those analyses.

20 A similar allegation of the existence of a duty of care was made against Mr Ballard.

21 In the particulars to the statement of claim, it was alleged that AGAL had a duty to exercise reasonable supervision and control over its employees in order to ensure the accuracy of any analysis undertaken and of any certificate of analysis that was issued based upon such analysis. It was also alleged that there was a duty to provide an effective system of checking that its protocols or standard operational procedures were consistently applied in the conduct of analyses and an effective system of checking the accuracy of the results of any analysis that was undertaken.

22 Contrary to the statement in the certificate of analysis, the seized substance was not methcathinone. It followed that the certificate was false, either because the substance was not methcathinone, or because it had not been qualified in any way so as to indicate that there was an anomaly in the test results. Mr Ballard did not disclose the falsity of the statement or the anomalous results to the DPP.

23 Mr Griffiths further alleged that AGAL and Mr Ballard, by the issue of the certificate of analysis and by the failure to disclose the discrepancy in the testing procedures, made a misleading representation to the police and the DPP.

24 The pleading as to causation is to be found in paras 38 and 39 of the amended pleading. In brief terms, it was alleged that but for the breach of duty, Mr Ballard and AGAL would have analysed the substances as not being methcathinone and reported that to the police and the DPP, or alternatively, would have reported that it was not possible to identify the substances as methcathinone. It was alleged that the failure to do so had caused loss and damage.

25 The pleading under the Trade Practices Act was based upon the issue of the false certificate of analysis and the representations as alleged in paras 24, 25, 27, 28, and 35 of the amended pleading, to which reference has been made above. It was alleged that that conduct was engaged in during the course of trade or commerce within the meaning of the Trade Practices Act and was in contravention of s 52 of that Act.

Issues on the appeal

26 Three issues are raised on the appeal and the cross-appeal and they may conveniently be dealt with together. The first issue is whether AGAL and Mr Ballard are immune from suit on the basis of the application of the principles of witness immunity. If either is immune from suit, then that is a complete answer to Mr Griffiths’ proceedings against that party. The second issue is whether either AGAL or Mr Ballard owed a duty of care to Mr Griffiths. The third issue is whether AGAL and Mr Ballard are liable to Mr Griffiths for damages as a consequence of a contravention of s 52 of the Trade Practices Act. (The pleading against Mr Ballard was that he was knowingly concerned in the contravention.)

Statutory context

27 Both the Poisons and Therapeutic Goods Act and the Drug Misuse and Trafficking Act are relevant to the issues presently under consideration.

28 The Poisons and Therapeutic Goods Act is

“An Act relating to the regulation, control and prohibition of the supply and use of poisons, restricted substances, drugs of addiction, certain dangerous drugs and certain therapeutic goods …”

29 As is stated above, Mr Ballard was appointed as an analyst under s 37A, which is contained within Pt 5 Div 2 of the Act. Part 5 is headed “Offences”. Division 2 of Pt 5 is headed “Analysts and analysis”. Section 37A provides:

“Appointment of analysts

(1) The Minister may appoint particular persons or a class of persons to be analysts for the purposes of this Act.

(2) The appointment of a particular person as an analyst is to be by a document of appointment given to the person.

(3) The appointment of a class of persons to be analysts is to be by means of a notice published in the Gazette.

Public Sector Management Act 1988

30 Section 37B provides for the conduct of analyses. Relevantly, it provides

“Conduct of analyses

(1) An inspector may submit for analysis under this section any substance or goods seized under this Act.

(2) An analyst is required to carry out or personally supervise the carrying out of an analysis of a substance or goods submitted to the analyst for analysis.

(3) An analyst who has carried out or personally supervised the carrying out of an analysis of any such substance or goods may, and must on request, issue a certificate of analysis setting out the results of the analysis.

31 Division 3 of Pt 5 relates to “Evidentiary matters”.

32 Mr Griffiths was charged with an offence under the Drug Misuse and Trafficking Act s 24. That section provides, relevantly:

“Manufacture and production of prohibited drugs

33 The certificate of analysis was provided under s 43 of the Drug Misuse and Trafficking Act. That section provides, relevantly:

“43 Certificate evidence

(1) Any analyst analysing any plant or substance submitted to the analyst or under whose supervision the analysis of any plant or substance submitted to the analyst is carried out may give a certificate of the result of the analysis.

Further relevant facts

34 I have set out the essential factual basis upon which Mr Griffiths based his claim. Senior counsel for Mr Griffiths contends that the factual matrix is more complex and when the full background is taken into account, this is not a case where it could be said that the there was no reasonable cause of action disclosed on the pleadings. The additional facts principally relate to the steps that were taken prior to the issuing of the certificate of analysis. It was submitted that these steps undertaken by Mr Ballard must be viewed, not only in the context of the time at which they were performed, but also by reference to the purposes for which they were performed.

35 Senior counsel contended that a construction of these preliminary steps reveal, at least at a prima facie level, that, save for one analysis, none of the other analyses were undertaken for the purposes of providing a certificate of analysis under s 43 of the Drug Misuse and Trafficking Act. It was further submitted that even the one analysis that did lead to the production of the certificate of analysis was not so “intimately connected” with the giving of evidence in court as to be protected by witness immunity.

36 It is necessary, therefore, to consider the additional material to see whether, on the facts alleged in the pleading and on the additional facts that were before the Court on the notice of motion, AGAL and Mr Ballard had established that there was no reasonable cause of action disclosed on the pleadings.

37 The written submissions filed on behalf of Mr Griffiths contain a detailed summary of the additional facts and the following is drawn from those written submissions. The source of the facts is fully referenced and there was no dispute as to their accuracy.

1. The search of Mr Griffiths’ premises occurred on 29 June 1999. The search was undertaken by the New South Wales police, accompanied by Mr Murtagh, a forensic analytical chemist who was also an employee of AGAL. Samples of substances found on the premises were taken by the police for examination. On 1 July 1999, two persons working at the premises were arrested and the police seized seven plastic bags containing a substance that was made the subject of the charge.

2. Three analytical tests were available to identify the nature of the substance that had been seized: the Gas Chromatography Mass Spectrometry test (GCMS); the Thin Layer Chromatography test (TLC); and the Infra-red Spectrography test (IR). The expert evidence (that had been given in the criminal proceedings) was to the effect that the most reliable test was the GCMS. There were three ways in which that test could be conducted and without dealing with them in detail, they may be identified as ‘the curator’s standard’; ‘the library standard’; and ‘the literature standard’. The expert evidence was that the literature standard was inferior to the curator’s standard.

3. On 6 July 1999, Mr Ballard undertook the IR (‘the first analysis’) and TLC test (‘the second analysis’) of samples from each of the seven plastic bags. He visually compared a spectrum to results published in a journal to which he was directed by Mr Murtagh. That analysis did not conform to National Association of Testing Authorities (NATA) standards. Mr Ballard reached a conclusion, subject to further testing, that the samples were methcathinone, however did not regard the results as settling that the substance was methcathinone.

4. Mr Griffiths was arrested on 7 July 1999.

5. On 12 July 1999, Mr Ballard undertook a second analysis of the substances.

6. On 14 July 1999, the police asked Mr Ballard for a certificate of analysis (preliminary).

7. On 15 July 1999, Mr Ballard carried out a GCMS test on one sample and by a visual comparison with the literature standard concluded that the substance was methcathinone (‘the third analysis’). There was a remarkable discrepancy between the ion intensity of the results of the samples and those contained in the literature. The Court of Criminal Appeal took the view that the conclusion ought to have been treated as tentative at best.

8. On 25 August 1999, Mr Ballard conducted the GCMS test using the ‘curator’s sample’ method. AGAL had received the curator’s standard on 5 August 1999. Mr Ballard ran the test, he said, “ to establish that the substance was methcathinone ” (‘the fourth analysis’).

9. On 8 August 1999, Mr Ballard issued a certificate of analysis (preliminary).

10. In calibrating the machine, Mr Ballard keyed in a “ retention time ” of 9.8 minutes with a permissible tolerance margin of 0.2 minutes, called the “ window ”: ie, if a retention time of 9.8 minutes, plus or minus 0.2 minutes, was found, then the substance would be described by the machine as methcathinone.

11. After the results of the test yielded a result which did not match methcathinone, Mr Ballard recalibrated the ‘window’ to make it wider so that a result of methcathinone would be returned.

12. On 7 September 1999, Mr Ballard issued the certificate of analysis. The certificate was issued on AGAL letterhead. Mr Ballard stated that he was an authorised analyst under s 37A of the Poisons and Therapeutic Goods Act and employed by the AGAL.

13. On 15 September 1999, Mr Ballard carried out further GCMS tests on one sample (‘the fifth analysis’).

14. On 23 May 2000, the committal hearing of Mr Griffiths occurred over four days, the last of which was on 24 August 2000.

15. On 16 August 2000, Mr Ballard conducted a FTIR analysis on one sample only (‘the sixth analysis’).

16. On 18 August 2000, AGAL carried out a further GCMS test on another sample (‘the seventh analysis’).

17. On 18 January 2001, AGAL carried out a further GCMS test on the remaining samples (‘the final analysis’).

18. All of the fifth to seventh analyses yielded results not consistent with methcathinone.

19. On 29 January 2001, Mr Griffiths’ criminal trial commenced.

20. On 10 April 2001, Mr Ballard was called as a witness and gave evidence until 3 May 2001.

21. In his evidence-in-chief, Mr Ballard gave details of the manner in which the tests were conducted. During the course of that evidence it became apparent that Mr Ballard had ‘interacted’ with the machines during the course of their run. The ‘change’ of the window had never previously been mentioned in any document, but came to light during the course of cross-examination.

22. On 15 June 2001, Mr Griffiths was found guilty.

23. On 18 July 2001, Mr Griffiths was convicted and sentenced.

24. On 26 October 2001, his Honour Justice Wood granted Mr Griffiths appeal bail.

25. On 7 June 2002, Mr Griffiths was successful in his appeal and the conviction was quashed.

26. It is alleged in these proceedings that at all material times Mr Ballard and AGAL knew (or would have reasonably expected) that information relating to the substances and their analysis would be passed on to the police and the DPP and relied on by them in determining whether to prosecute, or continue to prosecute Mr Griffiths.

Basis of AGAL’s alleged liability

38 Mr Griffiths alleged that Mr Ballard was employed by AGAL and that in carrying out the tests, he was acting in the course of and within the scope of his authority in providing his services to AGAL. The pleading against AGAL is twofold. First, it alleges that it is vicariously liable for the conduct of Mr Ballard. Secondly, in the particulars of AGAL’s duty of care in para 17, it is pleaded that AGAL had a:

“… duty to exercise reasonable supervision and control over its employees in order to ensure that the accuracy of analyses and any certificate of analysis and a duty to provide an effective system of checking that AGAL’s protocols or standard operation procedures were consistently applied in the conduct of analyses and an effective system of checking the accuracy of the results of analyses …”

39 An employer may be vicariously liable for the actions of its employees. The law in that area is well established and does not need to be restated. The question whether a person who is vicariously liable for the conduct of another is protected by an immunity that applies to the conduct of that person, is a different question, and is at the heart of the issue on the appeal.

40 Mr Griffiths contends that the immunity attaches to witnesses and does not extend beyond that to protect other parties who may owe a legal liability arising out of the conduct of the witness, regardless of whether the liability is vicarious or direct. AGAL contends that it is protected in respect of both aspects of liability.

Witness immunity

41 The principle of immunity from suit was explained by Lord Mansfield in R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 at 530 as follows:

“… neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.”

42 The existence of the general immunity is not in dispute. The issue in this case is the reach of its application. There is no doubt that the immunity protects a person from being sued as a result of evidence the person gives in proceedings. There is also no doubt that the immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings. The swearing of an affidavit is an easily identifiable example: see D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; Ollis v New South Wales Crime Commission [2007] NSWCA 311. The question here is whether it extends to protect a person in respect of acts that are preparatory to trial. That question, in turn, raises the question as to what matters are properly considered as being preparatory to trial, as opposed to being part of the investigative process, or at least that part of the investigative process which is not protected.

43 The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere avoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again: see D’Orta-Ekenaike v Victoria Legal Aid at 17-20 [37]-[42]; Meadow v General Medical Council [2007] QB 462 at 476 [14].

44 The immunity operates even if the evidence given by a witness is false: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. In that case, Ms Cabassi had brought proceedings against a Mr Ferrando, alleging assault. The proceedings were defended and Mr Ferrando called a number of witnesses to explain the circumstances in which Ms Cabassi had received the injuries of which she complained. The assault proceedings were dismissed. Subsequently, Ms Cabassi brought an action against Mr Ferrando and two of the witnesses in the assault proceedings, claiming they had conspired together for the purposes of injuring her by the giving of false evidence.

45 In dismissing the appeal, Rich ACJ explained the rationale underlying witness immunity at 139:

“An action by the defeated party cannot … 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. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation.” (Citations omitted)

“No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be ... the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court.” (Citations omitted )

“It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.

…

46 There are well recognised exceptions to the immunity, including prosecutions for perjury, contempt of court and for perverting the course of justice: see Cabassi v Vila; and in the case of any clear statutory provision to the contrary: Jamieson and Brugmans v R [1993] HCA 48; (1993) 177 CLR 574 per Deane and Dawson JJ at 582.

47 The High Court recently considered the rationale underlying the immunity in D’Orta-Ekenaike v Victoria Legal Aid. The issue in D’Orta-Ekenaike was the immunity of advocates. However, in considering that question, Gleeson CJ, Gummow, Hayne and Heydon JJ, at 18-19 [39]-[40], stated in respect of witness immunity:

“From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions 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. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit.”

…

both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments

48 Their Honours continued at 19-20 [41]:

Munster v Lamb

‘Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?’

But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises

49 Their Honours considered that the notion of finality of litigation was “a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society”: at 21 [45].

50 In the joint judgment, their Honours, at 18 [39], stated that the immunity extends to “preparatory steps”. McHugh J, at 36 [99], said that the immunity “extends even to out-of-court conduct that is intimately connected with the giving of evidence in court”. Both judgments cited the case of Watson v M’Ewan as authority for that proposition.

51 In Watson v M’Ewan [1905] AC 480 Jessie M’Ewan brought proceedings against Sir Patrick Watson alleging that statements made by him while being examined as a witness were slanderous. Mrs M’Ewan alleged that the statements made by Sir Watson in evidence had been communicated to her husband, his agent and counsel, prior to the trial as part of the preparation for trial. The main question on the appeal was whether the statements previously communicated to Mrs M’Ewan’s husband, agent and legal counsel prior to giving evidence in the witness box, could be the basis of an action in slander, or whether witness immunity extended to the prior communication.

52 The Earl of Halsbury LC (Lord Justices James and Robertson agreeing) in dismissing the “ingenious suggestion” of Mrs M’Ewan, stated at 487:

namely, the preliminary examination of witnesses to find out what they can prove

53 That the immunity extends that far is now well accepted. In Marrinan v Vibart & Anor [1963] 1 QB 528, the Court stated that the immunity extended to protect witnesses in the preparation of their evidence which was to be given in court.

54 The question remains however, as to how far back into the preparation stage the immunity reaches.

55 In Evans v London Hospital Medical College & Ors [1981] 1 All ER 715, the plaintiff had been arrested and charged with the murder of her infant son. The death was alleged to have been caused by morphine poisoning. The plaintiff’s arrest followed the results of toxicology tests that confirmed concentrations of morphine in the deceased’s organs. The toxicology reports confirming the presence of morphine were prepared by three of the defendants who were employed by the Hospital and which were given to the police and/or the DPP. Subsequent toxicological tests conducted by a pathologist acting for the plaintiff showed the organs to be free from morphine.

56 The plaintiff brought a claim for damages against the London Hospital Medical College and three individual defendants employed by the Hospital. The defendants brought motions to strike out the proceedings. Whilst conceding that the defendants had immunity in respect of any negligence after the criminal proceedings had commenced, the plaintiff argued that the negligent acts or omissions relied on occurred prior to the prosecution being commenced and were thus not protected by the immunity.

57 Drake J accepted that the cases established that a witness in criminal proceedings enjoys absolute immunity from any form of civil action in respect of evidence given during those proceedings and that such immunity extended to cover statements made in preparing a proof for trial or in a report to the DPP. The question for his Honour thereafter became whether the immunity extended to cover the acts or omissions of a witness or potential witness during the stage that material was being collected or considered with a view to its possible use in criminal proceedings.

58 His Honour, after stating that the immunity exists for the benefit of the public and the effective administration of justice, stated at 721:

“If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed.

For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence

59 Drake J considered that when the Court of Appeal in Marrinan v Vibart stated that the immunity extended to protect witnesses in the preparation of their evidence which was to be given in court, it intended to cover the collection and analysis of material to the offence or possible offence and was not confined to the formal proofs of a witness’ evidence.

60 Drake J held, therefore, that each of the defendants, at the time of preparation of the toxicology reports, was engaged in conduct which was part of the process of investigating a crime or a possible crime with a view to prosecution or possible prosecution. As a result, the defendants were protected by the immunity and accordingly no reasonable cause of action was shown to exist against them. In dismissing the appeal, his Honour did not give any separate consideration as to the basis upon which the immunity applied to the Hospital as compared to the individual defendants. This has some relevance to this case as the plaintiff separately pleaded against the Hospital that it owed a duty of care to ensure that the individual defendants carried out a proper analysis of the removed organs.

61 If Evans v London Hospital Medical College correctly states the law then it is likely that both AGAL and Mr Ballard would be protected by witness immunity, at least so far as it is invoked to protect the work done by Mr Ballard in analysing the seized substances. The question whether it does correctly state the law was examined by the House of Lords in Darker & Ors v Chief Constable of the West Midlands police [2001] 1 AC 435 with which I deal in detail below.

62 In X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the House of Lords was concerned with a number of cases involving claims against a number of statutory authorities. The case relevant for the purposes of this case is M v Newham Borough Council. In that case, a psychiatrist, in the presence of a social worker, examined a child to ascertain whether the child had been sexually abused and if so, by whom. The psychiatrist produced a report which was tendered in evidence and used in proceedings for the removal of the child from the custody of her mother. It was subsequently discovered that the abuser was mistakenly identifed and the child was returned to the mother’s care. The mother brought a claim for damages for personal injury against the defendants, the local authority, the area health authority and the psychiatrist employed by the area health authority. The claims against the authorities were brought in their capacity as employers, such that if the psychiatrist was negligent it was alleged that they would be vicariously liable for the actions of the psychiatrist.

63 Lord Browne-Wilkinson (Lords Jauncey of Tullichettle, Lane, Ackner and Nolan agreeing), in considering witness immunity in relation to the conduct of the psychiatrist in providing the report, cited with approval the statements of Drake J outlined above at [58] in relation to the investigation and preparation of evidence in criminal proceedings. His Lordship stated at 755:

“… exactly similar considerations apply where, in performance of a public duty, the local authority is investigating whether or not there is evidence on which to bring proceedings for the protection of the child from abuse, such abuse frequently being a criminal offence …

64 As a result, his Lordship found there was no claim in damages available against the psychiatrist and it followed on his Lordship’s reasons, the local authority. This case also supports the immunity appying in this case.

65 Senior counsel for Mr Griffiths submitted, however, that the trial judge failed to properly distinguish between actions undertaken as part of the investigative phase, which is not protected by the immunity, and actions undertaken as part of the forensic phase, which are protected. Senior counsel’s focus in this regard was, as it had to be, specifically upon the case pleaded. It was submitted that the case pleaded included allegations directed at the investigative stage.

66 Evans v London Hospital Medical College and X (Minors) v Bedfordshire County Council were considered in Hillman v Black & Ors (1996) 67 SASR 490. That case involved a claim brought by a father against two doctors and the Department of Community Welfare alleging each had breached a duty of care in the examination of his child, whom, it had been alleged, he had sexually assaulted.

67 Matheson J accepted as correct the statement of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council set out at [63] above. His Honour considered that in the case before him, there was such immediacy with possible proceedings in pursuance of the Department’s statutory duty that the investigation of the two doctors could not be made the basis of civil proceedings at the suit of the father. In reaching this conclusion, his Honour examined the basis upon which each doctor had undertaken the examination of the child. The examination that was more remote from the institution of any proceedings was that undertaken by a Dr Black, who examined the child upon the request of the Department. His Honour noted, at 504, that

“The Department is charged under the Act with the responsibility of providing support services for children and with the care and protection of children. It is the Government agency to which certain persons, including medical practitioners, must notify their suspicions of abuse pursuant to the provisions of s 91. [Evidence was given] that it was a matter of departmental practice to inform the police if it was thought that sexual abuse might have occurred. Dr Black must have known that if sexual abuse was substantiated, and the identity of the abuser discovered, proceedings by the mother or the Department or both for the protection of the child, or criminal proceedings against the alleged abuser, or both Departmental and criminal proceedings, would ensue. Further, she must have known that her findings would be the evidence upon which such proceedings would be based … [Dr Black] must have been aware of the likelihood of Family Court proceedings, and the use for which her written reports would be used, either by the mother or by the Department.”

68 Prior J did not consider that the immunity applied on the basis that the doctors owed no duty of care because they were not within a relationship of proximity with the alleged perpetrator of the sexual abuse (cf now Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, discussed below). Perry J did not find it necessary to consider that question.

69 In the present case, it was conceded that Mr Ballard was immune from suit in respect of the evidence he gave in the criminal proceedings. Senior counsel for Mr Griffiths submitted, however, that the evidence upon which the Court was acting did not permit a conclusion that all the steps taken by Mr Ballard, either before the issue of the certificate of analysis or after issuing the certificate, were steps taken as part of the steps preparatory to the evidence likely to be given at trial. Accordingly, the matter was not one that was appropriate for summary dismissal. In this regard, it was submitted that the trial judge erred in failing to analyse how the processes properly considered to be preparatory to trial related to earlier investigative processes, which may not be protected. It was submitted that his Honour failed to understand the fundamental distinction made in Darker & Ors v Chief Constable of the West Midlands police between these two processes.

70 In Darker & Ors v Chief Constable of the West Midlands police, the plaintiffs brought an action against the defendant claiming damages for conspiracy to injure and misfeasance in public office, alleging, inter alia, that the police officers had fabricated evidence against them. The defendant applied for the statement of claim to be struck out, claiming that the acts fell within the ambit of the immunity. There was no dispute that police officers who participated as witnesses in the course of proceedings were entitled to the benefit of the immunity. The question for determination related to the extent of the immunity and where the boundaries of its application were to be drawn.

71 Lord Hope of Craighead examined the existence of what he termed the “core immunity”, that is, the immunity that attaches to evidence given in the witness box, and recognised its extension to statements made by witnesses as part of the pre-trial preparation. His Lordship then stated at 448:

“The trial process would be inhibited if police witnesses and potential police witnesses were to be exposed to action for things said or done by them during the preparatory stage when they are undergoing this preliminary examination. The same approach can properly be taken to the preparation of technical reports by police officers with expertise in such matters as ballistics, explosives or fingerprinting . As in the case of other expert witnesses, it would unduly inhibit the trial process if they did not have the protection of the immunity in regard to the content of the reports which they had prepared with a view to giving evidence should the matter come to trial.

But there is a crucial difference

where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators

72 His Lordship added that the question of immunity should not be confused with the question whether in particular circumstances a duty of care was owed by, for example, police or prosecutors. This latter question is, of course, discussed by the High Court in Sullivan v Moody, a matter to which it will be necessary to return.

73 His Lordship continued at 449:

The acts of the witness in collecting material on which he may later be called to give evidence are not protected by the immunity

74 His Lordship accepted that the decision in Evans was correct on its own facts but he did not accept the statement of Drake J as being correct for all purposes.

75 His Lordship concluded that in these circumstances, where the allegations made in the statement of claim related not only to the content of the evidence that police officers might give, but also related, in part, to things done by them during the initial stage when they were acting as investigators, without hearing the evidence, it could not be confidently determined whether the allegations in the statement of claim fell within the boundaries of the immunity. Accordingly, his Lordship concluded that the question whether the immunity applied ought to be determined in the light of the facts as they emerged at the trial.

76 Lord Mackay of Clashfern at 452 stated:

“The essential character of the immunity … limits the application of the immunity to conduct which can be called in question only by a founding on a statement in court or a statement which is part of the preparation of evidence for court proceedings.”

Evans

Silcott v Commissioner of police of the Metropolis

covers all conduct that can fairly be said to be part of the investigatory … process

77 It will be remembered that Darker involved the fabrication of evidence by police. That was a matter of significance in the approach taken by Lord Cooke of Thorndon. As his Lordship pointed out, at 453, none of the conduct alleged against the police as the basis upon which the plaintiff’s claim was brought, could fairly be described as part of the process of investigating a crime. As his Lordship said, the fabrication of evidence is “almost the antithesis of investigation; it is creation”. He endorsed Sir Thaddeus McCarthy P’s statement in Rees v Sinclair [1974] 1 NZLR 180 at 187, that the protection afforded by the immunity “should not be given any wider application than is absolutely necessary in the interests of the administration of justice …”.

78 Lord Cooke acknowledged that allegations of conspiracy to give false evidence fell within the immunity and referred to Marrinan v Vibart. See also Cabassi, which is discussed above at [44]-[45]. His Lordship recognised that there may be borderline cases where it is not easy to draw the line as to the precise extent of witness immunity. His Lordship considered, at 453-454, that in such cases, the determination of the question as to whether immunity applied:

Conduct which is primarily and naturally to be seen as belonging to the investigatory function, even though it may have some ultimate link with the giving of evidence, should not be within the general protection

79 Lord Clyde, at 458, also confirmed the existence of the immunity in its traditional sense but went on to observe that the immunity would be worthless if it was confined to evidence given in court. He considered, therefore, that it extended to a statement of the evidence that a witness was going to give in court, regardless of whether the person was called as a witness. His Lordship was of the view that the same consideration, namely that the immunity should not be rendered worthless, applied to justify the application of the immunity to early stages of litigation or a prosecution where evidence was being collected with a view to proceedings being brought, or a prosecution being conducted. As his Lordship said at 459:

“It is then not enough that there be an investigation; the investigation must also be with a view to an action or to a prosecution which is already under consideration. Before that stage is reached it would be very difficult to justify the grant of an immunity. Even after that stage, if proceedings are commenced, it does not necessarily follow that all that is said or done in connection with the proceedings will be immune.”

80 Earlier, his Lordship had emphasised that the distinction between when the immunity applied and when it did not was whether the material in question was or was not provided with a view to court proceedings. His Lordship then considered the approach that should be taken in drawing the line between what was protected by the immunity and what was not. At 460, his Lordship indicated that it may be necessary to examine precisely what was being done and how closely it was linked with the proceedings in court. He stated that the immunity should not attach to things said or done which would not form part of the evidence to be given in the anticipated proceedings. His Lordship considered that the approach that he had formulated in determining what matters fell within or outside the immunity was underpinned by the purpose that the immunity was intended to serve, namely, the prevention of collateral attack on the witness and the circumvention of the immunity that that person might have within the court. Importantly, his Lordship added that the immunity did not protect against a charge of perjury, nor did it protect conduct that was designed to defeat the ends of justice, rather than to serve those ends.

81 Lord Hutton, at 466, referred to the statement of Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177:

Evans v London Hospital Medical College (University of London)

82 His Lordship stated at 469:

But the immunity in essence relates

to the giving of evidence

83 Lord Hutton’s judgment draws a distinction between fabricated evidence and a case where evidence was not fabricated. His Lordship also appears to distinguish Evans, as he commented at 466 that in Taylor’s case the House considered the test stated by Drake J in Evans in relation to statements, and not in relation to conduct, and no question arose as to the fabrication of evidence or the planting of evidence.

84 This review demonstrates that there are differences in the reasoning of the Lordships as to the extent of the application of the immunity. It is not appropriate for me to state for what the decision authoritatively stands. However, it appears to me that the following, at least, can be discerned. First, there is no doubt that the immunity extends beyond giving evidence in court. However, for the immunity to apply, there must remain a connection with the evidence that is to be given in court (regardless whether evidence is, in fact given). That latter proposition emerges from the reasoning of Lord Hope of Craighead.

85 Insofar as the various views expressed by their Lordships might be seen to apply to this case, no clear picture emerges. It is arguable that the reasoning of Lord Hope of Craighead may not protect Mr Ballard from suit, if the analyses undertaken (other than those upon which the certificate of analysis was based) are properly characterised as the collection of evidence. However, the better view of the early analyses and in particular, Mr Ballard’s analysis undertaken on 6 July 2003, the day before Mr Griffiths was charged, was part of what he was required to undertake to enable him to give evidence at the trial. It is possible that under Lord Hutton’s formulation the immunity would apply, provided that all of the analytical testing undertaken by Mr Ballard related to the giving of evidence. I consider this further below.

86 It is difficult to determine whether the immunity would apply on Lord Cooke’s reasoning, as it is unclear from his Lordship’s reasoning whether the early testing undertaken by Mr Ballard was part of the investigative phase. It is likely, subject to what I say below, that the immunity would apply on the basis of the approach taken by Lord Clyde, if the work Mr Ballard undertook from the beginning was undertaken with a view to a prosecution that was already under consideration. The immunity would not apply on the basis of Lord Mackay’s formulation of the extent of the application of the immunity.

87 However, senior counsel for Mr Griffiths placed particular emphasis on Lord Clyde’s observation that in circumstances such as here, where the immunity is sought to protect from suit in respect of conduct that occurred, at least, arguably, at the investigative stage, an investigation of all the facts is required to determine on which side of the “immunity” line a case falls. It was submitted that it was not so apparent that this case fell within the immunity such that it ought to have been summarily dismissed.

88 Senior counsel for Mr Griffiths reinforced this submission by reminding the Court that initially, a Mr Murtagh was involved in the process of determining the nature of the seized substance, so that it could not be assumed that Mr Ballard had been requested to undertake the analysis for the purposes of providing evidence in court. It was hypothesised that Mr Ballard may, for example, have been requested to provide confirmatory evidence as to the nature of the substance.

89 The difficulty with this submission is that it flies in the face of such evidence as there was before the Court which indicated that Mr Ballard was at all times providing certificates of analysis, albeit preliminary, of the substance to the police, and finally provided the certificate of analysis that was ultimately demonstrated to be inaccurate. Mr Ballard undertook his first analysis after the substances had been seized. Mr Griffiths was arrested the following day. His co-accused had already been arrested. It is apparent that the arrest, both of the co-accused and Mr Griffiths, was not a chance event. Rather, it may be inferred that it was as a result of an investigative process which was sufficiently advanced to enable the police to obtain warrants to undertake a search of the premises. The search was undertaken in the presence of Mr Murtagh. The police returned shortly after the original search and made the initial arrest of the co-accused. It may be inferred that in doing so, they had a reasonable suspicion that the seized substances were prohibited drugs. Whatever basis they had for that suspicion was not because of any testing undertaken by Mr Ballard.

90 Further, Mr Ballard was not in the process of investigating the commission of a crime. He was performing his task as an analyst for the purposes of providing an analyasis of the seized substances which had led to the arrest of Mr Griffiths and more significantly, to the earlier arrests of the co-accused.

91 In my opinion, Mr Ballard was not ‘investigating’ the crime alleged against Mr Griffiths. He was analysing a sample of a substance that had been seized from Mr Griffiths’ premises and which was to have been used in furtherance of a prosecution, if the substance was a prohibited substance. Lord Hope of Craighead’s remarks cited above at [73] make particular mention of people in Mr Ballard’s position and states they would be protected by the immunity.

92 The matter may be tested by considering it in this way. It seems that the certificate of analysis was not tendered in Mr Griffiths’ trial. Rather, he was called to give evidence and gave evidence of all of the tests that he conducted and the manner in which he conducted those tests. The action against Mr Ballard is based upon the manner he conducted those tests. Although Mr Griffiths has advanced a number of possible arguments as to why those tests may not have been carried out with a view to, or in furtherance of, the prosecution case, the fact is, Mr Ballard gave evidence of all of them. Nor was there any suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. And, in my opinion, there is no possible basis to suggest that his earlier or later testing was carried out for any other purpose unassociated with the prosecution.

93 The matter may then be tested further by having regard to the underlying rationale for the immunity. As was stated by the High Court in D’Orta-Ekenaike the immunity is founded ultimately in consideration of the finality of judgments. If this matter were to proceed to trial, it would involve a suit based upon negligent conduct of a series of tests carried out. Those tests were relied upon by the Crown for the purpose of proving that the substance found in Mr Griffiths’ possession was methcathinone. Mr Ballard gave evidence of all of the testing that he undertook. That could only have been relevant and admissible evidence if the whole of the testing was relied upon as proof that the substance was methcathinone. Accordingly, a trial based upon the negligent performance of that testing would involve the retrial, not only of the evidence given at trial but also of the preparatory steps taken to prove an essential ingredient of the charge brought against Mr Griffiths, namely, that the substance was the prohibited substance methcathinone.

94 It follows in my opinion, that even without resort to the English authorities, this case falls within the principle stated by the High Court as to the application of the immunity. When regard is had to the English authorities, then, on balance, the claim against Mr Ballard would have the protection of the immunity, on the basis of the principles discussed in those cases.

95 Before departing from this topic, I should mention that senior counsel for Mr Griffiths also relied upon a statement in the majority judgment in Mann v O’Neill [1997] HCA 28; (1997) 191 CLR 204 at 215, where their Honours held that it was not necessary that statements made to prosecuting authorities be absolutely privileged for the purposes of the law of defamation. Their Honours pointed out that the function of a prosecuting authority was not to determine the truth and justice of a particular matter, but to ascertain whether the circumstances were such that the institution of proceedings to ascertain the truth of the matter were warranted. It was held that absolute privilege was not required for the effective discharge of that function.

96 It was submitted that this approach was similar to the approach that had been taken in Darker, namely, that just as the defence of absolute privilege was not necessary to protect statements made to prosecuting authorities, likewise, the immunity was not necessary to protect steps taken during the investigative stage of proceedings. In taking that approach to the availability of absolute privilege in the law of defamation, the High Court in Mann v O’Neill emphasised, at 213, that the privilege should not be extended to statements that were said to be analogous to statements in judicial proceedings, unless there was a demonstrated necessity of the kind that dictated that judicial proceedings be absolutely privileged.

97 Mention should also be made at this stage to Meadowv General Medical Council where the question arose as to whether witness immunity, in whole or in part, operated so as to preclude disciplinary proceedings being taken against Professor Meadow in respect of evidence he had given in criminal proceedings refuting the proposition that the children of the accused (the mother of the victims) might have died of Sudden Infant Death Syndrome. The English Court of Appeal remarked upon the reluctance of the courts to extend the immunity, noting at 477 [17] that when it did operate, the immunity is absolute. Sir Anthony Clarke MR (Auld and Thorpe LLJ agreeing) held that the immunity did not extend to the disciplinary proceedings that had been instituted against Professor Meadow: see also Scanlon v Director-General, Department of the Arts, Sport & Recreation [2007] NSWCA 204.

98 Accepting that the courts have been keen to ensure that the immunity is not unnecessarily or inappropriately extended, the application of the immunity to the claim against Mr Ballard does not offend that principle. For the reasons I have given, I consider that the claim falls within the normal application of the principle, so that Mr Ballard is not amenable to suit.

99 Having concluded that Mr Ballard is protected by witness immunity, the question then arises whether AGAL is protected by the immunity. I propose to consider that question in the first instance on the basis that AGAL, as his employer, is vicariously liable for his actions.

Witness immunity and vicarious liability

100 There has been significant judicial discussion as to the jurisprudential basis for the imposition of vicarious liability and as to whether an immunity extends to protect a person who is otherwise vicariously liable. In Darling Island Stevedoring and Lighterage Company Limited v Long [1957] HCA 26; (1957) 97 CLR 36, Fullagar J, at 57-58, stated:

Stavely Iron & Chemical Co. Ltd. v. Jones

These words, however, are, in my view, incorrect as applied to a case where the liability of the employer is not personal but vicarious. In such a case if the servant is ‘immune’, so is the employer

101 Kitto J took a different view and stated at 60-61:

Broom v. Morgan

Dansey v. Richardson

102 The position of Fullagar J has been subsequently endorsed by the High Court and followed in other courts. In Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295, the widow of Horace Stanley Parker, whose life was lost in the collision between the HMAS Melbourne and HMAS Voyager, brought an action on behalf of herself and a child, against the Commonwealth, claiming damages on the basis that her husband’s death was caused by the negligence of the officers and crew of the two ships and of other servants of the Commonwealth.

103 It was accepted in that case that members of the armed forces were not liable at the suit of another member of the armed services officers for negligent conduct engaged in during peacetime. However, that principle did not operate to preclude the bringing of a suit by a civilian. In the course of considering the vicarious liability of the Commonwealth in that circumstance, reference was made to the application of an immunity to a person whose liability was vicarious only.

104 Windeyer J at 300-301 stated:

Imperial Chemical Industries Ltd. v. Shatwell

Pearce

the master cannot take advantage of an immunity from suit conferred on the servant

Broom v. Morgan

105 His Honour, at 303, rejected the statement of Lord Pearce (emphasised in the preceding quote) as to the application of an immunity where a party was vicariously liable. He said:

Broom v. Morgan

Pearce

I think not.

106 In Cowell v Corrective Services Commission of New South Wales & Anor (1988) 13 NSWLR 714 a former prisoner brought proceedings for false imprisonment against the Corrective Services Commission of New South Wales and a nominal defendant representing the Government of New South Wales. One of the questions that arose was whether the immunity of the prison’s governor destroyed the claim against the Commission where that claim was based on vicarious liability.

107 Clarke JA (Priestley JA agreeing) first referred to Darling Island Stevedoring and the continuing debate surrounding the theory of vicarious liability. His Honour then stated at 733:

“If there is no right to take action against the agent in respect of the conduct complained of then it seems to me to follow as a matter of principle that there is no right to take action against the principal in respect of that conduct … In the present case there never was a liability in the gaol governor in respect of the detention of the appellant and accordingly no basis for holding his principal liable for his acts. To conclude otherwise would be to undermine the very foundation of the traditional principle of vicarious liability.”

108 In De Bruyn v South Australia (1990) 54 SASR 231 the appellant brought proceedings against the respondent claiming damages for injury when she fell into an open culvert. The respondent sought to rely on s 29(1) of the Highways Act 1926 (SA), which provided

“No matter or thing done by the Commissioner or any inspector or other officer in good faith for the purpose of executing this Act shall subject the Commissioner, or such inspector or officer, to any liability in respect thereof”.

109 King CJ, in dealing with the question of whether the State could be vicariously liable notwithstanding s 29(1), stated at 235:

Parker v Commonwealth

110 In relation to whether s 29(1) operated to prevent what would otherwise be tortious conduct from amounting to a tort or merely protected persons from legal liability, the Chief Justice stated at 236:

“I see no relevant distinction between saying that a matter or thing done by a person in the postulated circumstances does not subject the person to any liability, including of course liability in tort, and saying that such matter or thing done by that person in those circumstances does not amount to a tort.”

111 However on this point, Legoe J at 245 stated:

Crown Proceedings Act

112 In Bell v The State of Western Australia [2004] WASCA 205, one of the questions for the Court was whether, if an official was immune from liability, in that case by virtue of s 124 of the Western Australian Marine Act 1982 (WA), the State of Western Australia could nonetheless be vicariously liable for the official’s conduct. McClure J (Le Miere J agreeing) stated at [34]:

“The weight of authority as well as the general rejection of the master tort theory of vicarious liability supports the conclusion that an employer is not vicariously liable for the conduct of an employee in the exercise of his employment if the employee is immune from liability. Of course that outcome can be altered by statute.”

113 In contrast, EM Heenan J referred to the judgments of Kitto and Taylor JJ in Darling Island Stevedoring and stated at [68]:

Darling Island Stevedoring and Lighterage Company Limited v Long

obiter

114 However, his Honour stated at [76]-[77]:

“The determination of the vital issue in this appeal therefore depends upon the resolution of highly persuasive dicta in the High Court coupled with established approaches to the strict construction of statutory provisions removing or reducing common law rights, on the one hand, and at least three decisions of intermediate courts of appeal which adopt and apply the proposition that the immunity of the employee results in the elimination of vicarious liability for the employer, unless expressly preserved. All this is against a background where those conclusions appear to depend, to a significant degree, upon the identification of an acceptable rationale for the doctrine of vicarious liability - a doctrine which is now regarded as being, if not opaque, at least not fully developed.

Cowell v Corrective Services Commission of New South Wales

Robertson v R

De Bruyn v South Australia

115 Contrary to the submission advanced on behalf of Mr Griffiths, there is a long line of authority (in which I include the obiter comments of Fullagar J in Darling Island Stevedoring and the statements made in Parker v The Commonwealth) that a person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the actual wrongdoer.

116 It follows, therefore, based on this authority, that AGAL is protected from suit in respect of its vicarious liability for Mr Ballard’s conduct.

Witness immunity and direct liability

117 Mr Griffiths has alleged in his amended pleading that AGAL was negligent for failing to have in place proper procedures and protocols to ensure that testing was carried out accurately. AGAL contends that witness immunity protects it from suit in respect of such direct liability.

118 I am not aware of any authority directly on point, and so it is necessary to find the answer in the underlying rationale for the existence of the immunity, as discussed by the High Court in D’orta-Ekenaike, whilst keeping an eye to the injunction that the immunity is not to be readily extended. I have discussed that underlying rationale of the immunity in some detail above. It is fundamentally, although not solely, to ensure that there be finality of litigation. Having regard to that underlying rationale, what is the position in respect of the separately pleaded case against AGAL, that it failed to exercise reasonable supervision and control to ensure the accuracy of the analyses that were undertaken, and failed to provide an effective system of checking to ensure that AGAL’s protocols and standard operation procedures were consistently applied?

119 Mr Griffiths had two responses to this question. The first is that to which I have referred above, namely, that the immunity is one that attaches to witnesses, not parties. Secondly, it was submitted that because of the uncertainty surrounding the question, it was not one that should be determined summarily. AGAL contends that the immunity is not limited to witnesses and applies to its alleged direct liability.

120 The question whether the immunity does operate requires a consideration of what underlies Mr Griffiths’ case of alleged direct liability. If such a case was allowed to proceed to trial, it would be necessary for Mr Griffiths to prove that some or all of the analytical testing undertaken by Mr Ballard was conducted and/or reported upon negligently. It would then be necessary to adduce evidence to support the particular allegation made against AGAL in respect of its operational procedures and protocols. The first part of that exercise, namely proof of Mr Ballard’s conduct, was a matter that was the subject of the evidence in the criminal trial. The second part of that exercise has no independent existence. It would be an irrelevant enquiry if not related to the first stage. Accordingly, to allow the matter to proceed on the specific basis pleaded against AGAL would, in my opinion, offend the underlying rationale of the immunity. It follows that on this reasoning the immunity also applies to the specific case pleaded against AGAL in the particulars to para 17. It should also be noted that the separate case pleaded against AGAL was in similar terms to that pleaded in Evans, and which was dismissed on the basis that the immunity applies. Whilst that decision supports the conclusion that I have reached, I have preferred to reach my conclusion on the basis of the principles as they have been stated by the High Court, especially in D’Orta-Ekenaike v Victoria Legal Aid.

121 Thus far, I have been considering AGAL and Mr Ballard’s immunity from suit in respect of the pleaded claims in negligence. Mr Griffiths has also pleaded that AGAL engaged in conduct in breach of s 52 of the Trade Practices Act and that Mr Ballard was knowingly concerned in that conduct. In my opinion, the immunity extends to those claims. There is nothing in the Trade Practices Act that provides a basis for excluding the immunity, and as the authorities have repeatedly emphasised, the immunity is absolute unless a matter falls within one of the recognised exceptions, or there is a clear statutory provision that excludes the immunity: see Jamieson and Brugmans at [46] above. There is no such clear statutory exception here.

122 These conclusions, namely, that the immunity applies to protect both Mr Ballard and AGAL from suit, mean that the appeal should be allowed and the cross-appeal dismissed. However, as other issues were argued, and as my determination traverses virgin country, it is appropriate that I deal with those other issues.

Alleged Duty of care of AGAL: the

Sullivan v Moody

issue

123 Mr Griffiths alleges that AGAL owed a duty to exercise reasonable care:

“i. In the conduct of his analyses of, and so as to identify, the substance; and

124 The duty alleged to be owed by AGAL was particularised in para 17 to include a duty to exercise reasonable supervision and to have appropriate protocols to ensure the accuracy on the testing that was undertaken.

125 Mr Griffiths’ primary argument in respect of the question whether AGAL and Mr Ballard owed a duty of care was that that question could not be determined summarily. It was submitted that the relationship and the nature of the arrangements made between AGAL and the New South Wales police needed to be examined to determine whether the work undertaken by AGAL in relation to the analyses conducted by Mr Ballard was such as to give rise to a duty of care and if so, what the scope of that duty was. As Gummow J remarked in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 at 1784 [43]:

“… duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question.”

126 AGAL contends that it owed no duty of care to Mr Griffiths. It was submitted that the duty of care as alleged against it was, properly characterised, a duty to control Mr Ballard’s exercise of the statutory power given to him under s 43 of the Drug Misuse andTraffickingAct to undertake analysis of the seized substances and to issue a certificate of analysis. It was submitted that no such duty existed: see Sullivan v Moody, especially at 580-582 [60]-[62].

127 In Sullivan v Moody the High Court stated as follows:

“[60] The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations .

128 It was further submitted that the existence of such a duty owed to Mr Griffiths was inconsistent with the duty that AGAL owed to the prosecuting authorities, that duty arising out of the contractual relationship between AGAL and the New South Wales police. In particular, it was submitted that the duty was inconsistent with a duty to control what might be said about Mr Griffiths and the substances that he had manufactured, it being contended that such control was the proper provenance of the law of defamation.

129 In my opinion, no such duty of care arises. I have referred at [*27] to the long name of the Poisons and Therapeutic Goods Act. The long name is instructive in understanding the purpose and object of the Act. The Drug Misuse and Trafficking Act is an act to prohibit the manufacture, supply, possession and use of certain drugs. A number of summary and indictable offences are created under the Act. Proof of the nature of any substance in respect of which an offence is alleged is a fundamental aspect in any prosecution brought under the Act. In that sense, AGAL, by the employment of analysts who are appointed by the Minister under the Poisons and Therapeutic Goods Act play an integral role in law enforcement. The emphasised portion of Sullivan v Moody at [60] quoted above is thus directly apt. Were it otherwise, law enforcement and prosecuting authorities would be liable for errors, including errors of judgment, or for malfunctioning equipment used for the purposes of carrying out their functions, including statutory functions. That would not only be contrary to the considerations stated by the High Court at [60], but is also likely to offend the notion that the recognition of a duty of care in such a circumstance would potentially give rise to indeterminate liability.

130 Further, in making the comment in the emphasised portion of [60], the High Court had examined a series of analogous cases: see the discussion at 581 [57]-[59] of Sullivan v Moody, pointing out that those decisions, although not determinative of whether a duty of care existed, were instructive. I do not propose in this judgment to set out those paragraphs, nor to separately analyse the decisions. It is sufficient, in my opinion, to note that the duty of care alleged here is sufficiently analogous to that which was alleged in those cases, to indicate that no duty of care is owed.

131 The same considerations apply to the duty of care alleged against Mr Ballard and for the same reasons Mr Ballard did not owe a duty of care to Mr Griffiths.

The Trade Practices issue

132 Mr Griffiths alleges that AGAL carried on the business of providing forensic services, including scientific and chemical testing, analysis and advice as to the results of those testing and analyses. He alleges that the giving of the certificate of analysis certifying that the analysed substance had been identified as methcathinone was misleading within the meaning of the Trade Practices Act, was conduct engaged in during the course of trade or commerce within the meaning of the Act and was in contravention of s 52 of the Act. Mr Griffiths has alleged as against Mr Ballard that he was knowingly concerned in the contravention.

133 AGAL contends that the representation made in the certificate of analysis as to the nature of the substance was not made in trade or commerce. It otherwise accepted that it was arguable (which was sufficient for the purposes of the application before the Court) that in providing the certificate of analysis by way of, or as part of a service provided to the police, that it was carrying on a business within the meaning of s 2A of the Trade Practices Act. It was also accepted, for the purposes of the application before the Court, that the giving of the certificate of analysis was within trade or commerce (on the basis that the provision of the certificate would have been for a fee). The question, therefore, is whether the contents of the certificate of analysis, that is the representation contained in the certificate of analysis that the substance was methcathinone, was made in trade or commerce. AGAL relied on the decision in Plimer v Roberts & Anor (1997) 80 FCR 303 in support of this opinion. I will turn to that decision shortly. Before doing so, it is convenient to turn to the High Court’s decision in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594.

134 In Concrete Constructions, the respondent, a construction worker, alleged that whilst employed by the appellant, a foreman instructed him to remove certain grates and informed him that each grate was secured by bolts. It was alleged that that was not so, and the respondent fell when one of the grates gave way, suffering serious injuries. He claimed damages against his employer on the basis that its foreman's untrue statement concerning the bolts was conduct which was misleading or deceptive or liable to mislead or deceive contrary to s 52 of the Trade Practices Act.

135 The majority (Mason CJ, Deane, Dawson and Gaudron JJ) held at 603-604 that s 52 was not intended

“… to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business … What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character … In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. The point can be illustrated by reference to the examples mentioned above. The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor’s name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct ‘in trade or commerce’ for the purposes of s. 52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct "in trade or commerce" for the purposes of that section. That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation "in trade or commerce". Nor, without more, is a misleading statement by one of a building company's own employees to another employee in the course of their ordinary activities.”

136 That brings me back to Plimer, upon which AGAL specifically relied. In that case, the Court was concerned with a number of representations made by Dr Roberts in the course of public lectures given throughout Australia, as to the existence of the remnants of Noah’s Ark at a site in eastern Turkey. Dr Roberts believed this provided tangible evidence of the literal truth of the account of the great flood in the book of Genesis. Professor Plimer, geologist, claimed to be affronted by these claims, which he said were misleading or deceptive. The question arose whether the representations made in the public meeting were made in trade or commerce within the meaning of the Trade Practices Act.

137 Davies J, at 305, considered that the subject matter of the lectures in which the misleading and deceptive statements occurred, was not in trade or commerce. His Honour considered that the subject matter itself was non-commercial in character and although there were monetary incidents to the lectures, such as entry fees and the sale of videos, the lectures were not concerned with commerce, but rather with the promotion of a creationist view of history and the investigation of a matter of great historical interest. Relevantly, the lectures were not given for the purpose of financial gain but for the achievement of other objectives. The lectures had been arranged by volunteers and his Honour considered that the audience would have attended because of an historical or religious interest in the matter. Further, Dr Roberts received no payment for the lectures and it was not suggested that in giving the lectures he was carrying on the profession of author or speaker.

138 Branson J, after referring to the High Court decision in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594 considered that the phrase “trade or commerce” indicated, at 311, that s 52 was concerned with “commercial activity”, that is, the provision of goods and services for reward.

139 Lindgren J, at 327, considered that the delivery of the lectures was not inherently a trading or commercial activity. His Honour accepted that there could be features of a lecture or address which could impart to the making of a representation in the course of doing so, the quality of being “in trade or commerce”. His Honour gave, by way of example, a case where the misrepresentation was characterised as directed to promoting the sale of goods or services. However, that was not the case in the matter before him.

140 Plimer v Roberts was referred to in Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110, where Heerey J observed that the Full Court in Plimer v Roberts noted the distinction between the selling of door tickets, videotapes and the like in relation to the lectures on the one hand, and the content of what was said in the lectures. His Honour remarked that the former was accepted to be conduct in trade or commerce, the latter was not.

141 The demarcation in this case is not so immediately obvious. The provision of the certificate of analysis was the service, or part of the service, provided to the prosecuting authorities. The certificate, of course, has no significance unless it has a content. In that way, it might arguably be said that the provision of the certificate, including its content, was conduct engaged in trade or commerce. However, there are at least two indications to the contrary which lead me to conclude that the conduct involved in the issue of the certificate was not conduct engaged in trade or commerce. The first consideration derives from the statutory force of the certificate, namely, that it may be used in evidence in legal proceedings, including criminal proceedings, and as such, has prima facie evidentiary effect. It would be unusual for the content of such a certificate to have the incidents of a commercial activity. The second (which I recognise may be related to the first and may merely be a different expression of it) is that where the conduct which is relied upon involves what I will describe as ‘witness conduct’ and that conduct is the very matter about which a person may be required to give evidence as a witness, then such conduct does not have the necessary connection with ‘commercial activity’ as to fall within the concept of ‘trade or commerce’ within the meaning of the Trade Practices Act.

142 I would conclude, therefore, that the representation made in the certificate of analysis was not made in trade or commerce. For that reason also, the claim under the Trade Practices Act ought to be dismissed.

143 I would therefore propose the following orders:

1. Appeal allowed;

2. Cross-appeal dismissed;

3. Set aside the following orders made by Rothman J:

(b) confirm order (2) (in respect of costs) made by Master Harrison;

5. Order that the plaintiff (Mr Griffiths) pay the costs of the first and second defendants (Mr Ballard and the Commonwealth of Australia) on the appeal before Rothman J;

144 YOUNG CJ in Eq: I have read the reasons of Beazley JA in draft and agree with her Honour and with the orders she proposes. I should, however, add a few comments of my own.

145 I have been greatly disturbed by this case as it would seem to the man or woman in the street that if an employee of the Commonwealth whom the community relies on for scientific accuracy, deliberately tampers with his or her scientific instruments to produce a false result knowing that such result may have drastic consequences for a person, that person should be able to sue.

146 In the instant case, such tampering is suggested on one version of the respondent’s case. I hasten to point out that, if the matter were able to go to trial, the tribunal of fact might reach the result that there was no tampering.

147 The consequences for the respondent in the present case were severe. A person in his seventies with health problems, and a person who apparently has an unblemished character was imprisoned for two and a quarter years in respect of an offence of which he was ultimately acquitted.

148 There is a clear public policy that witnesses in curial proceedings have immunity in respect of their evidence and in respect of what they did in preparing to give evidence. The immunity is in place primarily to protect the court system from abuse, rather than to confer a benefit on the witness, Cabassi v Vila (1940) 64 CLR 130, 141.

149 There are dicta in some of the English cases that fabrication of evidence lies outside the immunity, see eg per Lord Hutton in Darker v Chief Constable of West Midlands [2001] 1 AC 435, 469 and per Clarke MR in Meadow v General Medical Council [2007] QB 462,475-6.

150 However, in Cabassi, it was made clear that the policy was that subsequent action for fabrication of evidence or perjury was to be left to the criminal law and that all conduct of witnesses was covered by the immunity. In D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at 18 and 36 the High Court affirmed this approach.

151 As her Honour has said, the authority in this country makes us reach the conclusion that Mr Ballard has immunity.

152 As to the suggested vicarious liability of the Commonwealth for the acts of Mr Ballard, the authorities do not speak with one voice. However, the preponderance of them is that an employer cannot be vicariously liable for an employee’s action where the employee is not liable. This must be so in the case where the employee is not liable because, by statute or otherwise, he or she is deemed not to have sinned.

153 The exception is where there is some personal factor which protects the employee. The prime example is Broom v Morgan [1957] 1 QB 597 (and see the discussion of this case by Windeyer J in Parker v The Commonwealth (1965) 112 CLR 295, 301-3) where under the then law in England, a wife, injured by the negligence of her husband, could not sue the husband, but could sue his employer.

154 The present case is not in the personal factor category as the authorities cited by her Honour demonstrate. I would add to these Prince v Attorney-General [1996] 3 NZLR 733, 741, a case involving a situation not too dissimilar to the present.

155 The only other comment I need to make is that whilst I agree that the present claim should be struck out under the traditional test laid down in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, 129, I wish to reserve the position I tentatively took during argument that the overriding purpose stated in s 56 of the Civil Procedure Act, 2005 may well warrant courts striking out proceedings on less substantial grounds than those stated in General Steel.

**********

Citations

Commonwealth of Australia v Griffiths [2007] NSWCA 370

Most Recent Citation

Cases Citing This Decision

136

Hastwell v Parmegiani [2024] NSWCA 55

Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255

Cases Cited

28

Statutory Material Cited

4

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12

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Reported Decision:	70 NSWLR 268
Appeal Outcome:	Special leave refused with costs by the High Court - 13 June 2008

CITATION:	Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370
HEARING DATE(S):	13 September 2007
JUDGMENT DATE:	14 December 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Young CJ in Eq at 144
DECISION:	1. Appeal allowed; 2. Cross-appeal dismissed; 3. Set aside the following orders made by Rothman J: (i) order (a); (ii) order (b) insofar as Rothman J quashed the orders of Master Harrison made on 25 August 2004; (iii) order (d) dismissing the application of the second defendant (the Commonwealth of Australia) for a stay of proceedings; (iv) order (e) ordering the second defendant (the Commonwealth of Australia) to pay one third of the costs of the plaintiff (Mr Griffiths) on the motion before Master Harrison and on appeal to Rothman J; 4. (a) vary order (1) made by Master Harrison so that the order now made is that the proceedings against the first and second defendants (Mr Ballard and the Commonwealth of Australia) are dismissed; (b) confirm order (2) (in respect of costs) made by Master Harrison; 5. Order that the plaintiff (Mr Griffiths) pay the costs of the first and second defendants (Mr Ballard and the Commonwealth of Australia) on the appeal before Rothman J; 6. Order that the plaintiff (Mr Griffiths) pay the costs of the second defendant (the Commonwealth of Australia) on the appeal and of the first defendant (Mr Ballard) on the cross-appeal.
CATCHWORDS:	EVIDENCE – witness immunity – immunity where conduct sufficiently connected and preparatory to proceedings – statutory analyst undertook analysis of substance– s 37A Poisons and Therapeutic Goods Act 1966 – certificate of analysis issued under Drug Misuse and Trafficking Act s 43 – certificate issued for criminal prosecution – analyst manipulated testing of substance – plaintiff argued testing undertaken at investigative phase not forensic phase - whether analyst protected by principle of witness immunity - EVIDENCE – witness immunity – underlying rationale – ultimate consideration finality of judgments – proceedings would require retrial of evidence of analyst – whether inconsistent with finality of judgment - VICARIOUS LIABILITY – immunity of wrongdoer – employer seeking to rely on immunity of employee – whether immunity extends to protect a person who is otherwise vicariously liable - NEGLIGENCE – duty of care – imposition of duty of care – court would not ordinarily impose duty of care where duty would impose conflicting claims or obligations and indeterminacy of liability - analyst appointed by Minister under statute – proof of substance provided by analyst fundamental to prosecution – whether trial judge erred in finding arguable case that duty of care existed - TRADE PRACTICES – trade or commerce – issue of statutory certificate – certificate issued to prosecuting authorities – certificate certified content of substance for purposes of criminal proceedings – content of certificate related to witness’ evidence – certificate issued for fee – whether certificate issued in trade or commerce - PROCEDURE – summary judgment – inappropriate where real question to be tried
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 ss 24, 43 Poisons and Therapeutic Goods Act 1966 ss 37A, 37B Supreme Court Rules 1970 Pt 13 r 5, Pt 15 r 26 Trade Practices Act 1974 (Cth) ss 2A, 52
CASES CITED:	Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported) Bell v The State of Western Australia [2004] WASCA 2 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594 Cowell v Corrective Services Commission of New South Wales & Anor (1988) 13 NSWLR 714 Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435 Darling Island Stevedoring and Lighterage Company Limited v Long [1957] HCA 26; (1957) 97 CLR 36 De Bruyn v South Australia (1990) 54 SASR 231 Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237 D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1 Evans v London Hospital Medical College & Ors [1981] 1 All ER 715 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 Griffiths v Ballard & 2 Ors [2004] NSWSC 763 Griffiths v Ballard [2005] NSWSC 1350 Griffiths v Ballard [2006] NSWSC 245 Hillman v Black & Ors (1996) 67 SASR 490 Jamieson and Brugmans v R [1993] HCA 48; (1993) 177 CLR 574 Mann v O’Neill [1997] HCA 28; (1997) 191 CLR 204 Marrinan v Vibart & Anor [1963] 1 QB 528 Meadow v General Medical Council [2007] QB 462 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 Ollis v New South Wales Crime Commission [2007] NSWCA 311 Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 Plimer v Roberts & Anor (1997) 80 FCR 303R v Piggott, Griffiths & Simeon [2002] NSWCCA 218 R v Skinner (1772) Lofft 54; (1772) 98 ER 529 Rees v Sinclair [1974] 1 NZLR 180 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 Silcott v Commissioner of police of the Metropolis (1996) 8 Admin LR 633 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 Watson v M’Ewan [1905] AC 480 Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598 X (Minors) v Bedfordshire County Council [1995] 2 AC 633
PARTIES:	Commonwealth of Australia (Appellant) John Henry Griffiths (First Respondent) State of New South Wales (Second Respondent)
FILE NUMBER(S):	CA 40260/06
COUNSEL:	S Gageler SC; G Kennett (Appellant) R Kenzie QC; S Prince (First Respondent) Submitting appearance (Second Respondent)
SOLICITORS:	Blake Dawson Waldron (Appellant) Steve Masselos & Co as agent for John M O'Connor & Co (Brisbane) (First Respondent) IV Knight, Crown Solicitor (Second Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20188/03
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	10 April 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Griffiths v Ballard [2006] NSWSC 245