Cornwall v Rowan
[2004] SASC 384
•24 November 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORNWALL & ORS v ROWAN
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Besanko and The Honourable Justice Sulan)
24 November 2004
TORTS - MISCELLANEOUS TORTS - OTHER CASES
MISFEASANCE IN A PUBLIC OFFICE
Elements of the tort of misfeasance in a public office - claim against Minister of the Crown - withdrawal of government funding from women’s shelter - decision to include in the report of a Ministerial Review Committee unsubstantiated allegations - report to be tabled in Parliament - whether decision constituted misfeasance - relevance of reasons for including the allegations - whether decisions of the Minister actuated by malice
DEFAMATION - JUSTIFICATION
Report of Ministerial Review Committee - Nature of imputations contained in report - defence of justification - form and nature of report - whether imputations against the plaintiff justified -examination of particular statements - relevance of statements in the report that were not complained of as being defamatory
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE
Ministerial Review Committee report - publication to Minister - defence of qualified privilege – circumstances in which privilege lost – proof of malice - improper motive - lack of honest belief - knowledge of falsity – whether duty to report - whether qualified privilege lost
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
Appeal- approach of Appellate Court - consideration of principles in relation to Appellate Court’s interference with finding’s of fact - considerations of interference with findings of fact based on assessment of credibility of witnesses
TORTS - THE LAW OF TORTS GENERALLY - JOINT AND SEVERAL TORTFEASORS
DEFAMATION
Consultant to Ministerial Review Committee - publication of report - occasion of qualified privilege - whether publishers of report not guilty of malice are jointly and severally liable with those who are guilty of malice
Joint publishers of libel - television broadcasts - successful extended defence of qualified privilege by one publisher- unsuccessful defence by another - liability of unsuccessful defendant
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS - LIABILITY OF PRINCIPAL FOR TORTS OF AGENT
Consultant appointed to a Ministerial Review Committee - vicarious liability of principal for defamation by agent - whether consultant an agent of the committee - whether consultant in an employment relationship with the committee or an individual member of it - whether members of the committee vicariously liable for the tort of the consultant
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - LIABILITIES OF THE CROWN - IN TORT - FOR ACTS OF SERVANTS OR AGENTS
Vicarious Liability for Defamation - State Ministerial Review Committee - Commonwealth public servant a member-Judiciary Act 1903(Cth) s 56 and 64 - whether the Commonwealth vicariously liable for the vicarious liability of its public servant on the committee -whether Review Committee established pursuant to a joint Commonwealth/State funding agreement-Interpretation of agreement - whether the Commonwealth liable for the actions of the committee or of the consultant to the committee - whether State liable to indemnify members of the Review Committee - s 235A Community Welfare Act 1972 - whether Review Committee a community welfare advisory committee - s 11 Community Welfare Act 1972 - nature of advisory committee envisaged by the Act
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - REFERENCE TO PLAINTIFF
Television current affairs programs - nature of defamatory imputations - whether of and concerning the plaintiff - plaintiff unnamed member of a group - finding of lesser imputation not pleaded – effect of finding
DEFAMATION - OTHER DEFENCES - MISCELLANEOUS DEFENCES
Television current affairs programs - defence of fair and accurate report-s 7 Wrongs Act 1936 - elements of the common law and statutory defence - report of parliamentary proceedings - whether television current affairs programs constituted a report
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE
Television current affairs programs - extended defence of qualified privilege - elements of the defence - consideration of communications on or about government or political matters -whether television programs were a communication on or about a government or political matter - consideration of requirement of reasonableness - whether conduct of broadcasters was reasonable -whether conduct of interviewee was reasonable
DEFAMATION - FAIR COMMENT
Television current affairs programs - defence of fair comment -meaning of the term ‘comment’ - whether broadcasts comprised comment or statements of fact
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
Negligence - duty of care - preparation of report defamatory of plaintiff - whether public authority owes a duty of care in the exercise of a discretion - government funded women’s shelter - whether government Ministers owed a duty of care to the administrator in preparation of report and in the exercise of a discretion to withhold funding from shelter - whether administrator in employment relationship with government Ministers - whether publication of report and decision to withdraw funding constituted a breach of duty of care
TORTS - MISCELLANEOUS TORTS - CONSPIRING TO INJURE
Elements of the tort of conspiracy - conspiracy by lawful and unlawful means - whether there was a conspiracy against the plaintiff - whether acts committed in pursuance of a conspiracy
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PUBLIC POLICY
Admissibility of evidence - given before a Parliamentary Select Committee - admissibility in subsequent court proceedings - nature of Parliamentary privilege
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - SUFFICIENCY
Failure to call a witness - inferences to be drawn from failure - whether inference properly drawn from failure
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - PLEADINGS
Amendment of Statement of Claim - leave to amend after defence case closed and during final submissions - late discovery and production of relevant agreement - consideration of principles concerning exercise of discretion to amend - whether amendment pleaded fresh cause of action
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
DAMAGES FOR MISFEASANCE IN A PUBLIC OFFICE
Damages for misfeasance - relationship to an award of damages for defamation - appropriateness of award of damages for loss of reputation - appropriateness of the various components of the award for damages - assessment of damages - injury to health and economic loss - causation and quantum - medical and other expenses - appropriateness of exemplary damages
DAMAGES FOR DEFAMATION
Television current affairs programs - damages for defamation - whether the participant liable for all imputations to arise out the programs - joint and several liability - approach when separate torts result in the same damage - causation - liability for injury to health - liability for economic loss - assessment of damages - whether award of aggravated and exemplary damages appropriate
Community Welfare Act 1972 s 235A , 11, 12, 13; Support Accommodation Assistance Act 1985 (Cth); Associations Incorporation Act 1985 s 35, 57(1); Associations Incorporation Act 1956; Constitution Act 1934 s 38; Bill of Rights 1689 (UK) Article 9; Parliamentary Privileges Act 1987 (Cth) s 16(3); Judiciary Act (Cth) 1903 s 56, 64; Limitation Act (NSW) 1969; Trade Practices Act 1974 (Cth) s 52; Family and Community Services Act 1972; Wrongs Act 1936 s 25, 7; Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 11; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001; Civil Liability Act 1936 s 11; Crown Proceedings Act 1992 s 5, 4(1), referred to.
John v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) (1999) 73 ALJR 306; 160 ALR 588; Warren v Coombes (1979) 142 CLR 531; Rosenberg v Percival (2001) 205 CLR 434; Fox v Percy (2003) 214 CLR 118; Hobbs v Tinling [1929] 2 KB 1; R v Brotherton (1992) 29 NSWLR 95; Northern Territory of Australia v Mengel (1996) 185 CLR 307; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; State of South Australia v O'Shea (1987) 163 CLR 379; Kioa v West (1985) 159 CLR 550; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Roberts v Bass (2002) 212 CLR 1; Horrocks v Lowe [1975] AC 135; Clark v Molyneux (1877) 3 QBD 237; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Dingle v Associated Newspapers Ltd [1960] 2 QB 405; New South Wales Branch of the Australian Medical Association v Minister for Health of the Community Services (1992) 26 NSWLR 114; Goffin v Donnelly (1881) 6 QBD 307; Prebble v Television New Zealand Ltd [1955] 1 AC 321; Rann v Olsen (2000) 76 SASR 450; Church of Scientology of California v Johnson-Smith [1972] 1 QB 522; Jones v Dunkel (1959) 101 CLR 298; Egger v Viscount Chelmsford (1965) 1 QB 265; Dougherty v Chandler (1946) 46 SR (NSW) 370; Maguire v Simpson (1977) 139 CLR 362; Londish & Ors v Gulf Pacific Pty Ltd (1993) 45 FCR 128; Clough v Frog (1974) 48 ALJR 481; Queensland v JL Holdings Pty Limited (1997) 189 CLR 146; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Thom v Associated Newspapers (1964) SR (NSW) 376; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Sullivan v Moody (2001) 207 CLR 562; McKernan v Fraser (1931) 46 CLR 343; Williams v Hursey (1959) 103 CLR 30; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; Sanders v Snell (1997) 73 FCR 569; Carson v John Fairfax & Sons (1993) 178 CLR 44; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; Dingle v Associated Newspapers Ltd [1964] AC 371; Dingle v Associated Newspapers Ltd [1961] 2 QB 162, applied.
Webb v Bloch (1928) 41 CLR 331, distinguished.
Smith v Streatfield (1913) 3 KB 764; Wade v State of Victoria [1999] 1 VR 121, not followed.
Dunlop v Woollahra Municipal Council [1982] AC 158; R v Murphy (1986) 5 NSWLR 18; Groves v The Commonwealth (1981-82) 150 CLR 113; Scott v Davis (2000) 204 CLR 333; Bonette v Woolworths Limited (1937) 37 SA (NSW) 142; McCormick v John Fairfax and Sons Ltd (1989) 16 NSWLR 485; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175; Conservation Council of SA Inc v Chapman & Ors (2003) 87 SASR 62, discussed.
Thompson v Randwick Corporation (1950) 81 CLR 87; Holdings v Jennings [1979] VR 289; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Henly v Mayor of Lyme (1828) 5 Bing 91; John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; Payne v Parker [1976] 1 NSWLR 191; West v Government Insurance Office NSW (1981) 148 CLR 62; Thompson v ACTV (1996) 186 CLR 574; Humberstone v Northern Timber Mills (1949) 79 CLR 389; Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16; International Harvester Co of Australia Pty Limited v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644; Petersen v Moloney (1951) 84 CLR 91; Erikson v Carr (1945) 46 SR (NSW) 9; Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Cooperative Assurance Company of Australia Ltd (1931) 46 CLR 41; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Ravinder Rohini v Krizaic (1992) 105 ALR 593; Knupffer v London Express Newspaper Ltd [1944] AC 116; David Smye & Co v Canavan (1918) 25 CLR 234; Morgan v Odhams Press Ltd [1971] All ER 1156; Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Perera v Peiris [1949] AC 1; New York Times Co v Sullivan (1964) 376 US 254; Pritchard v Krantz (1984) 37 SASR 379; Manock v Advertiser News-Weekend Publishing Co Ltd (2004) 88 SASR 495; Rocca v Manhire (1992) 57 SASR 224; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14; Dorset Yacht Co Ltd v Home Office [1970] AC 1004; Anns v Merton London Borough Council [1978] AC 728; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Stovin v Wise [1996] AC 923; Pyrenees Shire Council v Day (1998) 192 CLR 330; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Spring v Guardian Assurance Plc [1995] 2 AC 296; Hill v Chief Constable of West Yorkshire [1989] AC 53; Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd [1992] 2 NZLR 282; Balfour v Attorney-General [1991] 1 NZLR 519; Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435; Sanders v Snell (1998) 169 CLR 329; Sanders v Snell (No 2) (1998) 130 FCR 149; Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229; Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510; Deren v State of New South Wales [1999] Aust. Torts Reps. 65,733; Costello v Random House (Australia) [1999] ACTSC 13; Todd v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334; Harrison v Pearce (1858) 1 F & F 567; 175 ER 855; Triggell v Pheeney (1951) 82 CLR 497; Coyne v Citizen Finance Ltd (1991) 172 CLR 211, considered.
CORNWALL & ORS v ROWAN
[2004] SASC 384Full Court: Bleby, Besanko and Sulan JJ
TABLE OF CONTENTS
Paragraph No.
1 THE PROCEEDINGS
1.1 Introduction.................................................................................... 1
1.2 The causes of action....................................................................... 9
1.3 The appeal..................................................................................... 16
2 THE REPORT OF THE REVIEW COMMITTEE
2.1 Nature of the report..................................................................... 21
2.2 The defamatory imputations........................................................ 34
2.3 Identification of Ms Rowan........................................................ 39
2.4 Justification.................................................................................. 41
3 THE FINDINGS AS TO CREDIT AND THE APPROACH
OF AN APPELLATE COURT
3.1 The trial Judge’s findings............................................................ 44
3.2 The approach of an appellate court............................................. 60
4 THE FACTS
4.1 Women’s shelters and their funding........................................... 72
4.2 Events leading to the review........................................................ 90
4.3 Appointment of the Review Committee.................................. 112
4.4 The Review Committee goes about its work........................... 126
4.5 Some unsubstantiated allegations............................................. 139
4.6 Recommendations concerning payment of advances............. 145
4.7 The 12 May meeting.................................................................. 153
4.8 Consequences of the 12 May meeting
4.8.1 DCW activity................................................................ 156
4.8.2 Final activities of the Review Committee................. 1724.9 Formal decision to withdraw funding and the tabling
of the report.............................................................................. 182
4.10 The signing of the undertaking.................................................. 189
4.11 The television broadcasts.......................................................... 198
4.12 Results of the CAC and police investigations......................... 201
4.13 A Parliamentary Select Committee and the Ombudsman...... 207
5MISFEASANCE IN A PUBLIC OFFICE – THE CLAIM
AGAINST DR CORNWALL
5.1Elements of the tort................................................................... 209
5.2The pleading and the trial Judge’s finding................................ 217
5.3The decision to publish the report............................................ 223
5.4The decision to withdraw funding............................................. 226
5.5Whether procedural fairness was required.............................. 232
5.6The decision to include unsubstantiated allegations in
the report.................................................................................... 237
5.7The pleadings and the conduct of the case............................... 240
5.8Whether the decision involved invalidity or illegality........... 244
5.9Whether the trial Judge’s findings of malice
were justified............................................................................. 251
6 DEFAMATORY NATURE OF THE REPORT
6.1Introduction................................................................................ 258
6.2Justification................................................................................ 262
7 QUALIFIED PRIVILEGE
7.1Loss of the privilege.................................................................. 272
7.2The test of malice adopted by the trial Judge.......................... 276
7.3The test to be applied................................................................. 280
7.4The trial Judge’s findings.......................................................... 287
7.5Onus of proof............................................................................. 296
7.6Knowledge of the falsity........................................................... 299
7.7A duty to report.......................................................................... 314
7.8Indicia of improper purpose
7.8.1State of knowledge and role of Mrs Roberts,
Ms Anderson and Ms Wighton................................... 320
7.8.2 Circumstances of the publication............................... 329
7.9The finding that there was no need to include the
unsubstantiated allegations....................................................... 338
7.10The finding of animosity of Mrs Roberts and Ms Wighton
towards Ms Rowan
7.10.1Mrs Roberts................................................................. 348
7.10.2Mrs Roberts and the television broadcasts................ 373
7.10.3Ms Wighton.................................................................. 377
7.10.4Evidence given before a Parliamentary Select
Committee.................................................................... 384
7.10.5Ms Anderson................................................................ 398
7.10.6Other evidence of animosity....................................... 401
7.10.7 The failure to call Ms Heath....................................... 410
7.10.8 Conclusion................................................................... 416
7.11The finding that the Review Committee acted in sympathy
or in concert with Dr Cornwall and DCW............................... 417
7.11.1The Review Committee and DCW............................. 421
7.11.2The recommendations not to pay advances............... 427
7.11.3The position of DCW.................................................. 430
7.12Conclusion................................................................................. 434
8VICARIOUS LIABILITY AND RELATED QUESTIONS
8.1Introduction................................................................................ 436
8.2The Grounds of Appeal.............................................................. 437
8.3The SAAP Agreement................................................................ 443
8.4Liability of Ms King as a joint tortfeasor................................ 448
8.5Liability of Ms King – Sections 56 and 64 of the Judiciary
Act (Cth)..................................................................................... 454
8.6The liability of Ms King as a principal of Ms Anderson........ 460
8.7The status of the Review Committee....................................... 488
8.8Section 11, Community Welfare Act 1972 (SA)................... 511
8.9Amendment of statement of claim........................................... 519
8.10Conclusion................................................................................. 529
9 THE TELEVISION BROADCASTS
9.1Introduction................................................................................ 530
9.2The ABC Program..................................................................... 531
9.3The TVB Program...................................................................... 533
9.4Imputations found by the trial Judge........................................ 535
9.5Grounds of appeal...................................................................... 538
9.6Identification or reference........................................................ 543
9.7The defamatory imputations..................................................... 566
9.8The defence of fair and accurate report................................... 579
9.9The extended defence of qualified privilege........................... 601
9.10Damages, interest and costs...................................................... 639
10 MRS ROBERTS AND THE TELEVISION BROADCASTS
10.1The imputations.......................................................................... 640
10.2Justification................................................................................ 652
10.3Fair comment............................................................................. 653
10.4Fair and accurate report............................................................. 658
10.5The extended defence of qualified privilege........................... 659
10.6Conclusion................................................................................. 666
11 MS ROWAN’S NOTICE OF ALTERNATIVE CONTENTIONS
11.1Introduction................................................................................ 670
11.2The claim in negligence............................................................ 673
11.3Conspiracy.................................................................................. 697
12DAMAGES FOR MISFEASANCE – DR CORNWALL
12.1 The trial Judge’s approach......................................................... 721
12.2 Misfeasance and damage to reputation.................................... 729
12.3 Misfeasance and economic loss, medical and other
expenses..................................................................................... 735
12.4 The trial Judge’s findings.......................................................... 739
12.5 Injury to health and loss of reputation..................................... 750
12.6 Economic loss – causation....................................................... 767
12.7 Economic loss – quantum......................................................... 771
12.8 Medical and other expenses...................................................... 786
12.9 Exemplary damages................................................................... 787
12.10 Conclusion................................................................................ 788
13DAMAGES FOR DEFAMATION – MRS ROBERTS
13.1 Relevant principles.................................................................... 790
13.2 Whether some components of the damages payable by
Dr Cornwall for misfeasance should be excluded from the
assessment of damages for defamation................................... 801
13.3 Aggravated and exemplary damages......................................... 804
13.4 Conclusion................................................................................. 808
14LIABILITY OF THE STATE OF SOUTH AUSTRALIA............. 811
15COSTS................................................................................................. 818
16CONCLUSIONS – SUMMARY...................................................... 822
APPENDIX
“SHELTERS IN THE STORM”: Extract from “Investigating Problems”,
Part 1.
THE COURT:
1 THE PROCEEDINGS
1.1 Introduction
On 11 August 1987 the then Minister for Community Welfare, the Hon Dr John Cornwall MLC (“Dr Cornwall”), who is one of the appellants, tabled in the Legislative Council of the Parliament of South Australia a report entitled “Shelters in the Storm”. It was a report to Dr Cornwall of a committee (sometimes referred to in these reasons as “the Review Committee” or “the Committee”) which he had appointed to review the management and administration of womens’ shelters in South Australia.
The members of the Review Committee were Mrs Judith Roberts (Chair), Ms Judith Blake, Ms Rosemary Wighton, Ms Colleen Johnson and Ms Robyn King. Mrs Roberts was involved in a number of community organisations and in women’s affairs. She had been a Vice-President of the South Australian Council of Social Services (“SACOSS”) and Chair of its Executive Committee. Ms Blake had been involved in the affairs of the YWCA and was administrator of the Whyalla Women’s Shelter. Ms Wighton was a Deputy Director-General of the Department of Community Welfare (“DCW”), the department which, under Dr Cornwall, administered the funding of women’s shelters in the State. Ms Wighton had held that position since late 1983 or early 1984. She had previously been Women’s Adviser to the Premier. She died before the action came to trial. The representatives of her estate were sued pursuant to the Survival of Causes of Action Act 1940. Ms Johnson was a trained school teacher and at the relevant time was Executive Director, Management Services, of the South Australian Health Commission. Ms King was the Senior Assistant Director of the Commonwealth Department of Community Services in the South Australian office. She was appointed to the committee at the request of Senator Grimes, the relevant Commonwealth Minister. Ms Jan Lowe was the original DCW representative on the Committee. She was replaced by Ms Wighton after the first meeting of the Committee. For the purposes of these reasons she is not included in any subsequent reference to the Review Committee.
The Review Committee was assisted by a paid consultant, Ms Harrison Anderson. She had acted in that capacity before for local and State Government and for community organisations.
The report tabled by Dr Cornwall concerned the management and administration generally of women’s shelters in the State. However, it drew particular attention to a number of alleged failings and what were described as “unsubstantiated allegations” of a serious kind concerning the administration and activities of some of the staff of the Christies Beach Women’s and Children’s Emergency Shelter Inc (“CBWS”).
At the time of tabling the report Dr Cornwall also announced in the Legislative Council the withdrawal of government funding of CBWS as from 4 September 1987. He caused a letter to be delivered to CBWS that day informing it of the decision.
At the relevant time, women’s shelters were funded under a joint Commonwealth – State funding agreement known as the Support Accommodation Assistance Program Agreement (“the SAAP Agreement”). The guidelines under the SAAP Agreement required, among other things, that any decision to withdraw funding from a shelter had to be made jointly by the relevant Commonwealth Minister and the relevant State or Territory Minister. The relevant Commonwealth Minister, the Hon Senator Susan Ryan, had agreed to the withdrawal of funding from CBWS. The withdrawal of funds resulted in the shelter operated by CBWS having to close its doors.
The tabling of the report generated significant media interest. The content of the report and the decision to cease funding CBWS were prominently reported on that day and in print media the following day. Also on the following day, 12 August 1987, the Australian Broadcasting Corporation (“ABC”) and Network 10 (Adelaide) Pty Ltd, formerly known as Television Broadcasters Ltd, (“TVB”) in their respective current affairs programs, the 7.30 Report and State Affair each broadcast features concerning CBWS. The 7.30 Report involved edited interviews with Mrs Roberts and Ms Helen McSkimming, then Acting administrator of CBWS. The State Affair program involved a live interview with Mrs Roberts and Dr Baum, then Chairperson of the management committee of CBWS.
The respondent, Dawn Rowan (“Ms Rowan”), was the administrator of CBWS, although she had been on continuous sick leave since 26 November 1986. As a result of the publication by the Review Committee of its report to Dr Cornwall, Dr Cornwall’s decision to cease funding CBWS and the two television broadcasts on 12 August 1987, Ms Rowan brought the present action against Dr Cornwall, the members of the Review Committee and Ms Anderson, the Hon CJ Sumner, then State Attorney-General and Minister for Consumer Affairs, the State of South Australia, the Commonwealth of Australia, Senator Ryan, the ABC and TVB.
1.2 The causes of action
It is convenient to set out briefly the various causes of action as they remained at trial, and how the trial Judge dealt with them.
The plaintiff sued Dr Cornwall, Senator Ryan, the individual members of the Review Committee and Ms Anderson in negligence, alleging that they negligently acted on and allowed the publication of certain unsubstantiated allegations in the report. As against the members of the Review Committee and Ms Anderson, Ms Rowan claimed that they negligently included those allegations in the report. Those claims were dismissed by the trial Judge.
Ms Rowan also sued the members of the Review Committee and Ms Anderson, the ABC and TVB for damages for defamation. There was no dispute that the publication of the report to Dr Cornwall was an occasion of qualified privilege and that the tabling of the report in Parliament by Dr Cornwall attracted absolute privilege. However, the trial Judge found that the qualified privilege was defeated by express malice on the part of Mrs Roberts, Ms Wighton and Ms Anderson in publishing the report to the Minister. The claim for damages against the ABC, TVB and Mrs Roberts arising out of the two television broadcasts also succeeded.
Although the trial Judge held that the other members of the Review Committee were not joint tortfeasors with Mrs Roberts, Ms Wighton and Ms Anderson, he did hold that they were vicariously liable for the actions of Ms Anderson as consultant to the Committee, for which the Commonwealth in turn was vicariously liable. The Judge found that the Review Committee was a joint Commonwealth-State Committee of review under the provisions of the SAAP Agreement; that the Review Committee was therefore acting on behalf of both the State and the Commonwealth; and that to the extent that any member of the Committee or Ms Anderson were each individually liable to Ms Rowan, both the Commonwealth and the State of South Australia were vicariously liable for their acts and omissions.
Ms Rowan also sued Dr Cornwall, Mr Sumner, the members of the Review Committee and Ms Anderson for the tort of conspiracy to injure her in her employment as administrator of CBWS and in her role as an advocate on issues of domestic violence and womens’ rights. That claim was dismissed by the trial Judge.
Finally, Ms Rowan claimed that Dr Cornwall acted maliciously towards her in deciding to withdraw funding from CBWS and thereby caused her loss. She claimed damages against him for misfeasance in a public office. That claim was upheld by the trial Judge.
The trial Judge awarded damages assessed at $340,425.10, comprising damages for injury to reputation, exemplary damages for misfeasance against Dr Cornwall, damages for economic loss and various items of special damage. Orders were subsequently made for the payment of interest and for contribution between the defendants.
1.3 The appeal
The first group of appellants (“the State appellants”) comprise Dr Cornwall, the members of the Review Committee other than Ms King, Ms Anderson, Mr Sumner and the State of South Australia. They appeal against the finding that Dr Cornwall was guilty of misfeasance in a public office. In relation to the finding of defamation associated with publication of the report to Dr Cornwall, they appeal against the failure to uphold their plea of justification. The major thrust of their appeal, however, is against the findings of malice on the part of Mrs Roberts, Ms Wighton and Ms Anderson and the failure to uphold the defence of qualified privilege. They complain about the finding that the publication by the Review Committee to Dr Cornwall caused loss and damage to Ms Rowan. They allege that any loss and damage flowed from the privileged publication in Parliament and fair and accurate reporting of that publication. They appeal on a number of grounds against the finding that Mrs Roberts was liable for damages for defamation as a result of her participation in the two television broadcasts. They also appeal against some aspects of the award of damages and the orders for contribution. There is also an appeal against the order for costs made against the State appellants, and Mr Sumner appeals against the inadequacy of the costs order made in his favour.
Another group of appellants (“the Commonwealth appellants”) comprise Ms King, Senator Ryan and the Commonwealth of Australia. They appeal against the finding that the members of the Review Committee were vicariously liable for the actions of Ms Anderson and that the Commonwealth was vicariously liable for the liability of Ms King. They complain about an amendment to the statement of claim during the course of final submissions to the effect that the Review Committee was a joint Commonwealth-State committee and that the Commonwealth and the State were jointly and vicariously liable for the torts of the committee and its members. They also object to the finding of the trial Judge that the Review Committee was such a joint committee. They assert that the Review Committee was a ministerial advisory committee under the provisions of the Community Welfare Act 1972 and that Ms King was therefore protected from liability by the operation of s 235A of that Act. They also appeal against the contribution order, and Senator Ryan appeals against the inadequacy of the costs order made in her favour.
The ABC and TVB both appeal on a number of grounds against the finding of defamation against them arising out of the television broadcasts and against the assessment of damages and interest against them. The ABC appeals against the contribution orders and its joint liability for the plaintiff’s costs. TVB appeals against its joint liability for the plaintiff’s damages.
By a notice of alternative contention, Ms Rowan challenges the trial Judge’s finding that Dr Cornwall, the Review Committee and Ms Anderson were not guilty of negligence against her and that Dr Cornwall, Mrs Roberts, Ms Wighton and Ms Anderson were not guilty of conspiracy to injure her. She also alleges that the defence of qualified privilege claimed by the State of South Australia and the ABC in respect of the 7.30 Report and by the State of South Australia in respect of the State Affair broadcast were not available to them because they had not pleaded, or in one case had not proved, reasonableness of conduct.
Finally, Ms Rowan also cross-appeals against the finding of the trial Judge that the ABC and TVB were not responsible for the plaintiff’s economic loss and against other aspects of the quantum of damages.
2 THE REPORT OF THE REVIEW COMMITTEE
2.1 Nature of the report
The report contained some 136 pages, with a further 66 pages of appendices. Part 1 was entitled “Financial Organisation and Accountability”. It dealt with the system of funding, the problem of shelters incurring deficits and financial accountability of the shelters generally. Part 2 concerned various aspects of the operation of management committees. Part 3 concerned administration of the shelters and Part 4 contained reference to a number of miscellaneous issues. At the end of each part the Review Committee made a series of recommendations applicable generally to shelters or DCW.
Part 1 contained a section entitled “Investigating Problems”. One page was devoted to concerns about the administration and management of the Hope Haven Women’s Shelter. The report noted that the issues raised were being squarely addressed. One page concerned the Port Augusta Women’s Shelter, which had the highest deficit of any shelter. The report noted that the organisation had addressed the issues raised appropriately.
The only other shelter included in this section of the report was CBWS. That part occupied 13 pages (pages 64-76 inclusive). A copy of those pages is annexed as Appendix I to these reasons. The final paragraph of the section reads:
“In view of the maladministration, both historic and current, of this shelter and in view of the uncertainty as to whether services to clients are both fully available and appropriate, the Review Committee recommends that funding be withdrawn.”
This recommendation did not appear as part of the general recommendations contained in the report, and the only reference to it was on page 76.
The section dealing with CBWS noted, at the outset, that it had been compiled largely from departmental files. It described as matters of concern which had previously come to the attention of senior management in DCW and to responsible State and Federal Ministers, “deficiencies in financial management”, “unacceptable management practices” and “unsubstantiated allegations of professional and personal misbehaviour”.
The report quoted, at pages 65-66, examples of unsubstantiated allegations involving professional and personal misbehaviour, but there were included in that group matters which might also be properly described as deficiencies in financial management and unacceptable management practices.
There then appeared from pages 66 to 68, a series of what were described as “financial and management issues” pertinent to CBWS. The report did not indicate whether all or any of these were substantiated or unsubstantiated.
On page 69 the Review Committee made the point that it had been “unable to assess the accuracy of all allegations received by the Department, and since it is not the Review Committee’s mandate to attempt to do so, we believe that it behoves the Department to ensure that a separate and thorough investigation is undertaken by the appropriate authorities”. There followed, on pages 69 to 71, criticism of DCW for not properly investigating or resolving past complaints in relation to CBWS.
The last paragraph on page 71 noted that Dr Cornwall had referred allegations of misbehaviour to the Police Commissioner and the Corporate Affairs Commission (“CAC”) for investigation. It will be necessary to refer later to the circumstances in which the allegations were brought to the attention of Dr Cornwall.
The report then resumed from pages 72 to 75, its criticism of DCW for its financial administration and the making of advanced payments to CBWS without apparent justification. It contrasted DCW’s approach to CBWS with its approach to Hope Haven. Having been critical of DCW’s failings in respect of CBWS, the report concluded on page 75:
“In conclusion, this shelter’s management has been characterised by persistent over-spending and ineffective control of personnel and resources. Unsubstantiated allegations call into question the quality of service delivery.”
This paragraph seems to assume that there is some substance in what the report described as “persistent over-spending and ineffective control of personnel and resources”.
The next paragraph on page 76 resumed the report’s criticism of DCW.
The report referred again to the investigation of allegations by the CAC and the Police Commissioner which were still proceeding. It then concluded with the final recommendation quoted above relating to the withdrawal of funding from CBWS.
2.2 The defamatory imputations
Those parts of pages 64 to 76 of the report of which Ms Rowan complained appear in italics in Appendix 1.
The trial Judge described the imputations contained in the report as follows:
“The ordinary meaning of the words complained of in this Report would convey to the ordinary, sensible reader that the persons who managed and worked at the Shelter were guilty of financial mismanagement, unacceptable management practices, and very serious professional and personal misconduct. The allegations of professional misconduct include criminal conduct, in that the charge of misappropriation of funds is effectively an allegation of theft. The ordinary, sensible reader would form the view that the management and operation of the Shelter were wholly inadequate. Given the nature of the Shelter’s activities, the reader would believe that the allegations of sexual and physical harassment, intimidation, and unprofessional and exploitative counselling, meant that the management and staff were wholly unfit to run a shelter.”
In relation to what the report describes as “unsubstantiated allegations”, the Judge held that they were defamatory because:
1.There was a reasonable inference that the three visits of CWD representatives to the shelter referred to in the report were concerned with those allegations;
2.The statement that CWD conducted inquiries indicated that there was some substance to the allegations and that they might be well founded;
3.That suspicion was reinforced by the recommendation to withdraw funding and the summary of the reasons given for that recommendation on page 76;
4.The defamatory nature of the allegations was given further weight because the recommendation was made notwithstanding that the unsubstantiated allegations had been referred to the police and CAC and were still being investigated;
5.Other parts of the report suggested that the Review Committee believed that the allegations had substance. That included reference to the fact that there was no other shelter about which claims of that nature had been received, that “the shelter’s history, according to departmental files is chequered with unresolved complaints and unsubstantiated allegations” and the assertion that if DCW had “provided greater support to those who made allegations, few women might have either subsequently withdrawn their allegations or continued to refuse to formalise them”, the inference being that the allegations had substance.
In a separate section of his reasons dealing with the defence of justification the trial Judge considered that Ms Rowan had established the following imputations against her:
·that she was unfit to run or be employed in the Shelter;
·that she was guilty of unprofessional conduct;
·that she was guilty of illegal conduct of the Shelter;
·that she was not adequately servicing the needs of the clients of the Shelter;
·that she was guilty of neglect and negligence in the running of the Shelter and in her employment in the Shelter;
·that she was guilty of dishonest and dishonourable conduct; and
·that she was guilty of sexual and physical harassment.
The State appellants do not challenge those findings as to the imputations contained in the report, although they do challenge such findings in relation to the two television broadcasts.
2.3 Identification of Ms Rowan
The trial Judge found that the allegations contained in the report referred to both the management committee and the staff of CBWS. That was a small group totalling 15 persons, of whom 6 were staff. Ms Rowan was closely identified with CBWS and it was widely known that she was the administrator. The Judge held that those who were acquainted with the plaintiff would reasonably believe that she was one of the persons involved in the conduct the subject of the allegations and was therefore identified as a subject of the defamatory statements.
That finding was also not challenged by the State appellants. However, the identification of the plaintiff in the later television broadcasts was challenged by the ABC and by TVB. Ms Rowan was not named in either of those broadcasts, and what was complained of about them was the repetition of some of the allegations contained in the report. As will be seen, there is some substance in at least part of the argument addressed by the television stations as to the identification of the plaintiff in those broadcasts. If it were necessary to do so, we would be constrained to make a similar reservation about the trial Judge’s finding concerning the identification of the plaintiff in the report itself. In the light of our ultimate finding concerning the claim against Dr Cornwall and of the several defamation claims, it is not necessary to address this question in relation to the defamatory nature of the report. However, it will be necessary to revisit this aspect when considering the question of damages.
2.4 Justification
The trial Judge prefaced his remarks by referring to the imputations which he found the report contained, summarising them this way:
“In my view, this was an instance where several separate and distinct imputations effectively boil down to one, namely, that the plaintiff was entirely unfit to run the Shelter. There are, broadly speaking, three grounds on which that charge was made. They are that the plaintiff had been guilty of financial mismanagement, that she had been guilty of criminal conduct, and that she had been guilty of sexual misconduct and physical harassment of residents at the Shelter. Each of those grounds should be considered as a separate imputation because each is such a grave charge and is so different from the others. It is proper, therefore, to regard each as a separate imputation.”
The Judge found that none of those imputations had been justified.
He pointed out that the State appellants did not attempt to prove misappropriation of funds, sexual harassment, physical harassment and intimidation, professional negligence or unprofessional, inappropriate and exploitative client counselling practices. He also pointed out a failure to justify a number of statements, particularly concerning financial management, which were not the subject of complaint by Ms Rowan. He considered that such deficiencies as there were did not amount in fact to financial mismanagement on the part of those identified in the report, even though he conceded that there may have been valid grounds for withdrawing funds from CBWS. In conclusion, he found that the State appellants had failed to prove the truth of the defamatory imputations which he found that the report had attributed to Ms Rowan.
3 THE FINDINGS AS TO CREDIT AND THE APPROACH OF AN APPELLATE COURT
3.1 The trial Judge’s findings
The trial Judge had before him a large number of documents, including correspondence, departmental memoranda and minutes of meetings. However, many documents were missing or were unable to be produced. This was the subject of some criticism by the trial Judge, but there was no evidence of any wanton concealment or destruction of documents for the purpose of frustrating the proceedings.
The trial Judge regarded the plaintiff as “frank and candid” in her evidence. The Judge considered that on some occasions she was guilty of over-statement, but despite some defects in her evidence he found her to be a witness of truth and accepted her evidence. He also accepted the evidence of other witnesses from CBWS.
Dr Cornwall, all living members of the Review Committee and Ms Anderson all gave evidence. Not surprisingly, they had difficulty in recalling details of events, most of which happened 14 years previously, and some of which happened years before that. They were all reasonably heavily reliant on such documents as were available to them.
Dr Cornwall had been Minister for Community Welfare since December 1985. His predecessor in office was Mr Greg Crafter, who continued to act as Minister when Dr Cornwall was overseas, as he was in July and early August 1987.
The trial Judge regarded Dr Cornwall’s evidence as “not convincing”, and at times “plainly wrong”. The Judge regarded his evidence as containing ex post facto self-justification and as being occasionally opportunistic and self-serving. On other occasions he considered that the answers were either “not responsive or evasive”. The Judge also considered that some of his answers displayed animosity towards the plaintiff. In general, Dr Cornwall’s evidence was only accepted where it was corroborated by objective facts.
The Judge considered Mrs Roberts to be “most unimpressive”. In his view, she was inclined to be dogmatic on certain issues where there was no justification for it and became an advocate for her own cause. He was unable to accept her evidence except where it was corroborated by objective facts.
Ms Anderson was also considered by the Judge to be “unimpressive”, her answers being often “vague and general …, careless and on occasions, quite inappropriately flippant”. The Judge considered that she displayed a degree of self-justification and he was only able to accept her evidence where it was corroborated by objective facts.
The Judge found that it was Ms Anderson, Mrs Roberts and Ms Wighton who were most closely involved in the drafting of the report.
In the Judge’s view, Ms Johnson was prone to exaggeration, could not remember relatively important events but professed a clear recollection of detail concerning CBWS, which the Judge found “unconvincing”. Her evidence was not accepted unless corroborated by objective facts.
Ms Blake’s evidence was relatively non-controversial but with “very little recall of events”. The Judge did not say whether he accepted or rejected her evidence.
The Judge considered Ms King to be an impressive witness who was frank as to what she could and could not recall. Her evidence was accepted by the Judge.
The Director-General of DCW was Ms Suzanne Vardon, who had held office since 4 February 1985. The previous Director-General had been Mr Ian Cox. Ms Vardon gave evidence but, according to the Judge, had no clear recollection of events and had reconstructed events from the documents. Her evidence was “not convincing”, and at times “clearly opportunistic”. The Judge noted that she was not as deeply involved in the issues relating to the work of the Review Committee or its report as Ms Wighton. Nevertheless, the Judge did not accept her evidence unless it was corroborated by other objective evidence.
The other principal witness from DCW was Mr Bicknell. He was head of the non-government welfare unit of DCW, which funded and supervised women’s shelters, and had held that position from some time in 1985. He was regarded by the Judge as being more objective than the members of the Review Committee and Ms Vardon and “to a large extent” his evidence was accepted.
There were many other witnesses, but it is not necessary for present purposes to record the Judge’s comments about them. In general, their evidence was accepted.
Ms Wighton was, of course, unable to give evidence, she having died. Another officer of DCW who did not give evidence was Ms Wendy Heath, an advisor on women and welfare. She was a person to whom a number of complaints were made about CBWS. The Judge made comment adverse to the State appellants about the failure to call her. It will be necessary to return to that topic later.
The trial Judge’s observations regarding the credibility of the principal witnesses, particularly those in respect of whom specific findings of malice were made, are of some significance and cannot be ignored. However, as can be seen from the application of the principles which govern appellate courts in this area, such observations do not necessarily preclude a reversal of a finding of malice if this Court were to conclude, for proper reasons, that such a conclusion was erroneous, when considered against other objective evidence.
3.2 The approach of an appellate court
A common starting point for a consideration of the modern law as to the approach of an appellate court to findings of fact based on the findings by a trial Judge as to credibility of witnesses formed on observations of their demeanour, candour and like factors is a trilogy of cases comprising Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23, Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472. In the latter case, in their joint judgment, Brennan, Gaudron and McHugh JJ said, at 479:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.” [Footnotes omitted]
Deane and Dawson JJ, in their joint judgment, at 479-480, said:
“An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge’s assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The ‘value and importance’ of that advantage ‘will vary according to the class of case, and, … [the circumstances of] the individual case’. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge’s conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence. Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby ACJ pointed out in Galea v Galea, in many cases today, judges at first instance expressly ‘disclaim the resolution of factual disputes by reference to witness demeanour’. However, this does not deny that in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings.” [Footnotes omitted].
However, the effect of these observations must not be over-emphasised. As Kirby J said of them in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) (1999) 73 ALJR 306; 160 ALR 588 at [84]:
“The result of the trilogy has been that, in some circles, the mere mention of credibility findings or their possible relevance to the decision by the trial judge has been viewed as locking and barring the door to successful appellate reconsideration of the facts. That is not what was said by the court in Abalos or in the accompanying decisions. If this appeal does nothing else, it should once again restore the understanding of this court’s authority, returning the understanding of it to the ‘traditional’ view.”
The “traditional” view to which Kirby J referred (see [82]) was that expressed by the High Court in Warren v Coombes (1979) 142 CLR 531 at 551:
“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.”
The application of that traditional view in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd, itself can be seen from the joint judgment of Gaudron, Gummow and Hayne JJ at [63] – [64]:
“It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her while giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case … provides significant support to the allegations made by Mrs Page.
As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA’s case upon a consideration of the real strength of the body of evidence it presented.” [Footnote omitted]
Kirby J identified the circumstances in which findings of credibility will be almost unassailable. At [91] – [92] he said:
“[B]ecause trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge’s decision, the old strictures about that judge’s advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court’s rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it.”
Kirby J proceeded to give some examples of when credibility findings do not bar an appeal. At [93] the following are included:
“1.In some cases the evidence of the witness, where credibility is in question, although relevant to the outcome of a trial, relates only to particular aspects of the parties’ dispute and leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding. In such cases, to avoid appellate reversal, the trial judge must demonstrate that such evaluation has occurred. It will be rare, in large and complex cases presenting multiple issues, for the entire decision to hang on the credibility of a single witness, although that can certainly happen. Where there is other evidence, unchallenged, unanswered, ostensibly reliable and supported by uncontested contemporaneous records, an adverse credibility finding in respect of one witness or more does not remove from consideration all of the other evidence. Nor can it relieve the trial judge, or the appellate court when required, of the duties of analysis and the provision of reasons to demonstrate and explain that such analysis has occurred.
2. …
3.It may also be possible to demonstrate that, although the trial judge reached conclusions adverse to the credibility of an important witness, this has been done on the basis of evidence which was wrongly admitted. Where such evidence has occasioned a substantial miscarriage of the trial it may be excluded and the foundation for the credibility finding may then be knocked away.
4. and 5. …
6.[I]n a particular case, a trial judge may make it plain that the conclusion reached does not depend upon credibility considerations or impressions about the demeanour of a witness but upon the judge’s assessment of objective facts or inferences to be drawn from the facts as found. Ordinarily, the appellate court will then be in as good a position as the trial judge to make the assessment and draw the inferences. …
7.There is also the case, as was accepted in the early Privy Council decisions, where, although a credibility finding has been made which represents an apparent obstacle to appellate review, it is so contrary to the ‘extreme and overwhelming pressure’ resulting from the rest of the evidence, or is so ‘glaringly improbable’ or ‘contrary to the compelling inferences of the case’, that it justifies and authorises appellate interference in the conclusion reached by the trial judge. In this, as in other areas, the law recognises imperfection of its processes and the need to avoid absolute and inflexible rules. It affords to the appellate court the power to intervene so as to prevent the risk of a serious injustice where this is clearly demonstrated. Such jurisdiction, held in reserve, is exercised with a full appreciation of the elusiveness of certainty in any trial process; the value accorded to the interest of finality in litigation; and a realisation of the costs and other disadvantages inherent in appeal and retrial. Full reasons must be given by the appellate court to demonstrate that, notwithstanding the credibility finding, the result of the trial is ‘palpably’, ‘glaringly’ or ‘compellingly’ erroneous when viewed in the light of all of the evidence. If this court considers that the circumstances are insufficiently exceptional, the reasons unpersuasive and the interference unwarranted, it may say so. It will then restore the trial judge’s findings as, from time to time, it has done.” [Footnotes omitted]
In Rosenberg v Percival (2001) 205 CLR 434 both McHugh J at [27], [37] – [39] and [41] and Kirby J at [103] and [162] stressed the importance in that case of the trial Judge’s finding based on his assessment of the credibility of a material witness, but that was on a question of causation on which there was no other material on which a finding could be made as to whether, if the plaintiff had been warned of the possible consequences of the particular operation, she would have proceeded with it. This decision does not detract in any way from what was said by the Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd. Indeed, those principles were recognised and applied by the High Court in Fox v Percy (2003) 214 CLR 118. In that case the Court did not question the continued applicability of cases like Abalos v Australian Postal Commission and Devries v Australian National Railways Commission, but as Gleeson CJ, Gummow and Kirby JJ said, at ibid [27] – [29]:
“However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.” [Footnotes omitted]
It will be necessary to consider the application of these principles, particularly with respect to the findings by the trial Judge that Dr Cornwall, Mrs Roberts, Ms Anderson and Ms Vardon were actuated by express malice towards Ms Rowan.
However, there is another principle which also needs to be borne in mind when reviewing these findings of the trial Judge. The Judge rejected, unless it was corroborated, the oral evidence of all four of the parties just mentioned. That is to be understood as meaning that, save to the extent that their evidence may have been corroborated by other objective facts, the trial Judge rejected any evidence of theirs which might go towards denying that they were actuated by malice. However, it does not follow that in each case malice is therefore necessarily proved. As Scrutton LJ observed in Hobbs v Tinling [1929] 2 KB 1 at 21:
“But by destroying that evidence you do not prove its opposite. If by cross-examination to credit you prove that a man’s oath cannot be relied on, and he has sworn he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.”
Similarly, in R v Brotherton (1992) 29 NSWLR 95 at 104, Hunt CJ at CL said:
“Any suggestion that the disbelief of a denial produces some evidence of the truth of the matter denied is contrary to a fundamental principle of evidence; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 684, 694; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 462-463. Similarly, the disbelief of a denial as a matter of logic adds no greater weight to evidence of the truth of the matter denied than the absence of any denial at all. The appellant would simply be no further ahead.”
It follows that, if there is no acceptable evidence from the person whose state of mind is in question, malice is not proved by the fact that the witness is disbelieved. There must still be some acceptable evidence from which the state of mind can be inferred.
4 THE FACTS
4.1 Women’s shelters and their funding
Women’s shelters in general were established around Australia in the early to mid 1970’s to provide assistance to women and children who were the victims of domestic violence. The shelter operated by CBWS had been in existence since 1975 at Christies Beach. It was initially a small voluntary organisation. It was administered by a management committee and staff. From 1985 to 1987, Ms Rowan was the administrator of CBWS and Ms Helen McSkimming was secretary to the management committee.
The shelters were initially self-funded with some small grants from government providing financial support. They later received more substantial funding from government. In South Australia, shelters were funded by the State and Commonwealth governments through DCW.Funds were allocated to each shelter and the quantum of funding varied from shelter to shelter, but it appears that there was no clear evidence as to how shelters were funded. CBWS depended entirely on government funding.
For each quarter, shelters were required to submit a financial statement to the DCW showing the expenditure in the previous three months. There was a further statement required to be made by the shelters to the DCW at the end of each financial year. Grants were paid to shelters every quarter. It was common for shelters to spend more than allocated grants and it was common for shelters to request extra funding.Requests for extra funding were made before the end of each quarter and the advance would be provided in the next quarter’s funding.
In the case of CBWS, records show that in the year of 1981-2 that the shelter spent no more than the annual grant. However, from 1983 to 1987, CBWS spent more than was allocated to it. One of the CBWS staff would contact DCW and seek additional funds when funds were about to run dry. Usually additional funds would be provided without question. At other times, DCW would make some enquiries before providing extra funding. Any income provided to the shelters over the set grant for their expenditure was called the “deficit”. No extra funding would be granted over the deficit funding.
In the 1980’s the South Australian shelters established a committee called the “Women’s Shelters Advisory Committee” (“WSAC”). WSAC’s role was to be a lobby group for the shelters and was a meeting point for representatives of the shelters to discuss common problems. It comprised at least one representative from each of the shelters. Ms Rowan was active in the WSAC.
As at 1 July 1983, six out of the then eleven South Australian shelters were overspending their set grants, or incurring deficits, by amounts in excess of $2,000. As at 30 June 1986, five out of the then thirteen shelters had considerable deficits, most of which had accumulated during that financial year.
At least two shelters which were in deficit by 1986 were politically vocal about funding and sought further funding from the DCW. These were CBWS and North Adelaide. The object of their protests was to enable the shelters to be more self-reliant when providing services for their clients. Ms Rowan was involved in the protests both as administrator of CBWS and with her involvement in WSAC. She also encouraged other shelters to agitate for more funding.
Two financial officers from DCW visited CBWS on 23 February 1984 and 13 March 1984. The visits were to discuss the financial position of CBWS. The visits were largely organised by Ms Heath. The reason for the 13 March visit was to discuss alleged financial mismanagement of CBWS and to discuss with CBWS its request for a further $10,000 after CBWS had used all its funds. Departmental notes indicate that CBWS claimed that funding was inadequate, that there was no real reason why CBWS was in deficit, and that there were concerns from DCW that certain members of staff were not on the wages schedule. DCW had general concerns about CBWS but did not press an audit of it. DCW decided to pay the $10,000.
In May 1985, the Auditor-General reviewed the control of funding operations of women’s shelters by the DCW. The Auditor-General wrote a letter to DCW on 5 June 1985 expressing the view that the DCW had exercised inadequate control over the expenditure of funds by the shelters. He concluded that such failures had led to financial deterioration to an unacceptable level of two out of six shelters examined, one of which was CBWS. He concluded that there was expenditure of grant moneys for items outside the scope of grant conditions, and that the financing of deficits as at 30 June or carrying them into 1985/6 contributed to aggravating financial viability for the following year. The Auditor-General recommended that DCW identify shelters with financial problems, provide advice and assistance to achieve financial viability, that consideration be given to the financing of deficits and that there be a system of continuous financial monitoring so that funds to be supplied be used for approved purposes and in a responsible manner.
In order to rectify what had become a fragmented system of funding accommodation shelters throughout Australia and a duplication of State and Federal government resources, the Commonwealth and State governments concluded an arrangement whereby funds would be allocated by the Commonwealth to the States which were to be administered by the States in accordance with the agreement. The States were also obliged to provide funds pursuant to a formula jointly agreed upon by the Commonwealth and States.
The Support Accommodation Assistance Act 1985 (Cth) (the “SAAP Act”) 1985 (Cth) provided that the Commonwealth and the States were authorised to enter into an agreement in connection with the provision of support accommodation services and related support services. Where an agreement had been entered into, the Commonwealth Minister for Community Services could authorise payment to the State by way of financial assistance of such amounts as the Minister determined: s 5, SAAP Act.
The practice of some shelters gaining extra funding through deliberately incurring deficits and forcing their payment in order to avoid the political odium that would be associated with their closing their doors continued until July 1987, and continued through the introduction of SAAP as from 1 January 1985. That program caused further political agitation by women’s shelters. In particular, one of its requirements was that recurrent grant funding was conditional upon receipt of a financial undertaking signed on behalf of the shelter restricting the use of grant monies for particular stated purposes. That was a source of discord between some shelters and DCW.
In the meantime, the women’s shelters had divisions amongst themselves. One discordant issue was the establishment by DCW of the Migrant Women’s Emergency Support Service (“MWESS”) in February 1985. The majority of the shelters opposed the establishment of MWESS on the ground that money would be diverted from them to MWESS. Shelters that supported MWESS were expelled from the WSAC. These shelters were Port Augusta, Mount Gambier, Whyalla (of which Ms Blake was administrator) and Western Area Women’s Shelter. The funding of MWESS continued to be a divisive issue until October 1986, when shelters became united in relation to other funding issues. Ms Rowan was active in the opposition to MWESS and in the expulsion of some of the shelters from WSAC. Her opposition to MWESS was well-known to Dr Cornwall, who after his appointment, supported MWESS. MWESS was also supported by Mrs Roberts and, no doubt by virtue of her position in DCW, by Ms Wighton.
SAAP was not limited to the financing of women’s shelters. It catered for and had three sub-programs to it. They were:
(1)The Youth Supported Accommodation Program which supported accommodation and services for homeless youth;
(2)Women’s Emergency Services Program (“WESP” or “Women’s SAAP”) which supported accommodation and related services for women and their children;
(3) The General Supported Accommodation Program what was intended to provide support and temporary or permanent accommodation for homeless men, women and their children.
That division in itself was perceived by the women’s shelter movement as a threat to the proper funding of women’s shelters, they then having to compete for SAAP funding with the other programs. Funding under SAAP became political and caused continuing discord with DCW.
General advice to DCW was given by the SAAP Policy Advisory Committee (“the PAC”). The PAC also recommended the allocation of grant monies. Ms Rowan and Ms Joan Balendran, the administrator of North Adelaide Women’s Shelter, were members of the PAC. Three committees reported to the PAC and made recommendations to the PAC about policy and funding. As for the Women’s SAAP Advisory Committee, there was a representative from each shelter on it. Ms Rowan was CBWS’s representative.
At the time of the introduction of SAAP, four shelters, namely Para Districts, North Adelaide, Port Augusta and CBWS were in deficit. On 14 November 1985, Ms Vardon went to Canberra to seek extra funding to pay out shelter deficits. This meeting appears to have been the precursor for arrangements between the DCW and the Commonwealth for the payment of shelter deficits in June and July 1986. Political demands by the shelters to increase funding continued.
A meeting was arranged to take place on 14 May 1986 to discuss the funding difficulties of CBWS. The meeting was to take place at the office of Dr Hopgood, a member of the State Cabinet. The plaintiff and Ms McSkimming were waiting outside Dr Hopgood’s office when Dr Cornwall arrived with Ms Wighton and Mr Bicknell. Based on the evidence of Ms Rowan and Ms McSkimming, the trial Judge found that, upon seeing Ms Rowan and Ms McSkimming, Dr Cornwall was angry and said words to the effect, “I have been waiting to get you for some time”. The Judge found that those words were said in anger and not as an expression of a wry sense of humour.
4.2 Events leading to the review
The requirement under SAAP for shelters to give a financial undertaking also caused the shelter movement to be politically active and vocal. By 30 June 1986, eight of thirteen South Australian shelters had deficits. Internal documentation from DCW in May and June 1986 indicated that DCW was intending to fund those deficits but with a proviso that, in future, no advances would be available over and above payments of the quarterly grants. The proposal to fund the deficits required the approval of the Commonwealth Minister, who at the time was Senator Grimes.
On 6 June 1986, Dr Cornwall wrote to Senator Grimes to seek approval for a joint decision to pay out shelter deficits. The total deficit for all shelters as at 30 June 1986 was expected to be $88,700. This was to be a once-off arrangement where the deficit would be paid if the shelter provided an undertaking that it would operate within the grant that was provided. The letter identified what Dr Cornwall believed were the main causes of deficits in the shelters. They included the under-estimation of operating costs by shelter management, increased levels of service provided by shelters that increased operating costs, paying workers on the highest salary increments when the grant was calculated on payment to workers at the lowest relevant salary level applicable to equivalent Government employees, and the relocation of the Irene Shelter at a cost of about $20,000.
Leaving aside for the moment that latter difference, we must first examine whether the measure of damages for defamation arising out of the television broadcasts should be the same as that awarded against Dr Cornwall for the tort of misfeasance. For present purposes, that award is equivalent to what would have been awarded against Dr Cornwall had he been liable in damages for defamation for the publication of the report. It is therefore appropriate to treat the damages awarded against Dr Cornwall as if they were damages awarded in an action for defamation.
The publication of the defamatory material by the television stations was an independent and separate tort. Generally speaking, each several tortfeasor is liable only for the damage caused by his or her own publication: Harrison v Pearce (1858) 1 F & F 567; 175 ER 855; Dingle v Associated Newspapers Ltd [1964] AC 371 at 410. The difficulty arises where there are numerous publications to the same or similar effect. It may be impossible to determine which publication caused what damage. In those circumstances, the law regards the injury to the plaintiff as the joint result of each publication and each publisher will be liable for that damage.
In the Court of Appeal in Dingle v Associated Newspapers Ltd [1961] 2 QB 162 Devlin LJ said, at 186-187:
“The reasoning behind Saunders v Mills 6 Bing. 213 and Harrison v Pearce 1 F & F 567 is, I think, simply that the damage done by other publications is deemed to be irrelevant. So in one sense it is. If each publisher is thought of as having his own circle of readers or listeners, he will be made responsible for the publication to them but not beyond, and it is irrelevant to say that some other publisher will be responsible for another publication of the same libel to another circle. But in defamation the damage goes beyond the harmful effect upon the minds of those who receive the publication at first hand. There has to be taken into account as well, for example, the element of mental distress which does not increase proportionately with the extent of the publication. More important, there is the slow spread of the libel beyond the immediate circle; and if eventually the whole public mind is permeated, no-one can identify each separate source of infection. The damage due to mental distress and to widespread repetition constitute, it may be said, an indivisible injury for which the damages cannot be separately assessed as between different publications of the same libel, and therefore each wrongdoer whose act is a substantial cause of the injury must pay for the whole.”
Devlin LJ continued at 188-189:
“This conclusion appears to me to be in accordance with, and indeed to exemplify, a fundamental principle in the law of damage. Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not …
… If a master during the course of a morning hears the same slander about the plaintiff, his servant, from four different defendants, he may after he has head them all decide that coming from four sources it must be true and he may dismiss the plaintiff in the afternoon. Subject to any defence he may have, each defendant is severally liable for the whole of the financial loss which the plaintiff suffers from the dismissal. If one defendant has no defence, it will not help him at all that the other three can make out a good case on the grounds of qualified privilege.
The same principle must apply to general damage for loss of reputation. If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes.”
See also Lord Denning on appeal in the House of Lords, [1964] AC at 410-411.
Although each defendant is liable for the same damage, over-compensation of the plaintiff is avoided by the application of s 11 of the Civil Liability Act 1936:
“At the trial of an action for a libel, the defendant may give in evidence in mitigation of damages that the plaintiff has already recovered or has brought action for damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport of effect as the libel for which such action has been brought.”
Adjustment of fair contribution between several tortfeasors can be achieved by the application of s 25, Wrongs Act 1936. See now s 6, Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001. In this case, however, there are no contribution proceedings between Dr Cornwall and Mrs Roberts, and it will therefore not be necessary to consider that question further in these proceedings.
In this case, the imputations against Ms Rowan contained in each of the television programs were the same and were the same as the imputations contained in the report. Their publication was separated by a little over 24 hours. There was evidence that Ms Rowan was already in a state of despair, anger and distress and that the injury to her reputation had occurred as a result of the widespread publication of the contents of the report tabled in Parliament the previous day. That is not to say that the television programs caused less harm than the original publication. Given the same imputations, it must be presumed that both contributed to the same loss and damage.
The television programs, by their nature, were in the form of comment on what was already widespread public knowledge. To some extent they assumed previous publication of the report and some public knowledge of the contents. Nevertheless, the imputations were the same. The content and timing of the television programs cannot reduce the extent of Mrs Roberts’ liability to the plaintiff for the damage which flows from the defamation. If any adjustment were to be made, it would need to be made in contribution proceedings between Mrs Roberts and Dr Cornwall.
13.2 Whether some components of the damages payable by Dr Cornwall for misfeasance should be excluded from the assessment of damages for defamation
The trial Judge held that the ABC and TVB were not liable for any economic loss incurred by Ms Rowan in being unable to find employment. The Judge held that the stress of the publication of the defamatory statements in the report had caused her inability to obtain employment. It was not caused by what had been broadcast by the ABC or TVB.
If that aspect of the decision stands, it follows that Mrs Roberts also should not be liable for Ms Rowan’s economic loss. However, the State appellants argued vigorously that the trial Judge was wrong in excluding damages for economic loss from the award against the two television broadcasters. We agree that, if the award of damages for economic loss flowing from the publication of the report was justified, there was no logical reason to exclude it from the award against the television broadcasters and therefore against Mrs Roberts.
In the assessment of damages for defamation, the Commonwealth and TVB argued that there should be no allowance for damage to Ms Rowan’s health at all, and the Commonwealth further argued that there should be no liability for economic loss at all. However, these points did not form part of the appeal of the State appellants, and in the circumstances it is not necessary to address them further. For similar reasons it is not necessary to address the arguments of the ABC and TVB that there is no liability for the expenses of removal to Victoria and sale of Ms Rowan’s house or that there is no liability for medical and paramedical costs and pharmaceutical expenses.
13.3 Aggravated and exemplary damages
Ms Rowan appeals against the failure of the trial Judge to award aggravated damages against the State appellants and the failure to award exemplary damages against the defamation defendants. Under present circumstances the complaint of the failure to award aggravated damages is limited to Dr Cornwall and Mrs Roberts, and the failure to award exemplary damages is limited to Mrs Roberts.
The trial Judge, with respect, correctly stated that defendants who are liable for damages for defamation are only liable for aggravated damages if it is established that their conduct was improper, unjustifiable, or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 514; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237-238, Toohey J. It is also necessary that the conduct causes harm to the plaintiff. The trial Judge considered that the failure of the Review Committee to state all relevant facts and its failure to make a realistic assessment of the unsubstantiated allegations indicated improper conduct. That finding would apply to Mrs Roberts also in relation to the television broadcasts. However, the Judge held that Ms Rowan’s suffering as a result of the report was no greater by reason of the conduct of the Review Committee defendants. He considered that the unsuccessful plea of justification did not entitle the plaintiff to aggravated damages because the compensatory damages had been assessed in regard to the continuing harm and the damage to Ms Rowan’s reputation, and that aggravated damages were intended to compensate the plaintiff, not to punish the defendant.
In our view, there was no justification for the award of aggravated damages. However unreasonable some of the actions of Dr Cornwall and Mrs Roberts may have been, the award adequately compensates Ms Rowan for all her losses, including for the substantial period of time preceding the trial of the action.
The question of exemplary damages payable by Dr Cornwall has been dealt with. The Judge refused to award exemplary damages to the defamation defendants. In view of our finding that Mrs Roberts was not actuated by malice, there is even less justification for an award of exemplary damages against her. These aspects of Ms Rowan’s cross-appeal must be dismissed.
13.4 Conclusion
It follows that the general damages for injury to Ms Rowan’s reputation flowing from the two television broadcasts must now be reduced to the same figure as that component of general damages assessed against Dr Cornwall, but that the final figure must be increased to include the component of economic loss which the Judge declined to include.
The damages arising out of the two television broadcasts must therefore be assessed as follows:
Damages for injury to reputation etc. $190,000.00
Economic loss (loss of earning capacity) 55,819.00
Medical and pharmaceutical expenses and costs
of removal to Victoria 34,606.10
_________
$280,425.10
As the two television stations are not liable for those damages, the whole liability must now be borne by Mrs Roberts, together with interest on that amount. As the same loss has been caused by the torts of Dr Cornwall and Mrs Roberts, they will be jointly and severally liable for this amount.
14 LIABILITY OF THE STATE OF SOUTH AUSTRALIA
The State appellants objected to a finding of the trial Judge that the members of the Review Committee were liable for the actions of Ms Anderson because the State of South Australia had agreed to indemnify them. In the circumstances, this issue no longer arises.
However, ground 22 of the State appellants’ grounds of appeal asserts that the trial Judge erred in finding that the State of South Australia “was jointly and severally liable for the damages and defamation”. There is a lack of clarity in that ground, but the argument addressed to it appears to relate to the situation concerning Ms Anderson.
There remains open, however, the position of the State of South Australia in the action and whether the judgment against it should remain. The only pleading against the State of South Australia in the Statement of Claim alleges a breach of a duty of care to Ms Rowan by Dr Cornwall and the State of South Australia (para.39A) and vicarious liability “for the torts of the Committee and the chairperson of the Committee acting in that role” (para.5AA).
The action based on breach of a duty of care was dismissed. The actions against members of the Review Committee in compiling and publishing the report are now also to be dismissed.
The Statement of Claim does not allege vicarious liability of the State of South Australia for the acts of misfeasance of Dr Cornwall. Nor does it allege vicarious liability against the State of South Australia for Mrs Roberts’ actions in participating in the television broadcasts. It does not allege that she was acting in the role of chairperson of the Review Committee in participating in the broadcasts so as to allege vicarious liability under paragraph 5AA of the Statement of Claim. The trial Judge certainly did not address any questions of the State’s vicarious liability for the misfeasance of Dr Cornwall or for the actions of Mrs Roberts in the television broadcasts. They were not addressed on appeal.
The action does not appear to have been brought against the State of South Australia as representing Dr Cornwall as a Minister of the Crown or as representing Mrs Roberts, in relation to the television broadcasts, as an instrumentality or agency of the Crown: see s 5 and s 4(1), definition of “Crown”, Crown Proceedings Act 1992.
Our present inclination is to allow the appeal by the State of South Australia and to set aside the judgment against it on the ground that the causes of action against those parties in respect of whom the vicarious liability of the State of South Australia is pleaded have been dismissed. However, it may be that in practice nothing turns on this. It is a matter on which we invite further submissions from the State appellants and Ms Rowan.
15 COSTS
All the appellants except TVB have appealed against some aspect of the trial Judge’s award of costs. It is clear that the costs of the trial will need to be revisited in the light of the result of this appeal.
However, the actions brought against Senator Ryan and Mr Sumner were dismissed and those dismissals have not been the subject of cross-appeal by the plaintiff. Senator Ryan and Mr Sumner have both appealed against the alleged inadequacy of the order for costs in their favour.
Senator Ryan was represented by the same solicitor and counsel as the Commonwealth of Australia and Ms King. Because judgment was entered in favour of Ms Rowan against the Commonwealth and Ms King, the Judge fixed a separate allowance for costs in favour of Senator Ryan. This aspect of the Commonwealth appellants’ appeal was not the subject of any written or oral submissions by Mr Stanley. In view of that fact and in view of the fact that, as the Commonwealth and Ms King have been successful on appeal, the whole of the costs of those three defendants may have to be revisited, it is inappropriate to deal separately with the appeal of Senator Ryan at this stage.
The trial Judge took a similar approach in relation to Mr Sumner who was represented by the same counsel and solicitor as the State appellants. Submissions were made on his behalf, but as the question of the various State appellants’ costs at trial may now be a matter of some complexity, it is appropriate that the issue of Mr Sumner’s costs should also be dealt with at the same time as the issue of costs generally.
16 CONCLUSIONS – SUMMARY
An action for damages, involving numerous causes of action, was brought by Ms Rowan, the plaintiff, against thirteen named defendants. The claims for damages arose out of the publication by a Review Committee, appointed by the then Minister for Community Welfare, Dr Cornwall, of a report entitled “Shelters in the Storm”, the subsequent tabling of that report in the Legislative Council of the South Australian Parliament on 11 August 1987, the associated cessation of government funding for the operation of the Christies Beach Women’s Shelter, extensive publicity which followed the tabling of the report and cessation of funding, and two television broadcasts in which the report and the Shelter were discussed.
The trial Judge found that all but two of the defendants were liable to the plaintiff for various amounts of damages. He awarded costs in favour of the two defendants who were not liable, and made orders for contribution between the defendants.
All the defendants appealed against various aspects of the judgment. Ms Rowan cross-appealed. The two defendants against whom the action was dismissed appealed against the inadequacy of the order for costs made in their favour.
We have held that the trial Judge was correct in holding Dr Cornwall liable in damages to the plaintiff for misfeasance in a public office. However, we have reduced the component of general damages of the award of damages but have confirmed the Judge’s inclusion and assessment of all other components, including the assessment of the plaintiff’s economic loss. The judgment against Dr Cornwall will be reduced from the amount of $340,425.10 to an amount of $305,425.10. Both those figures include the award by the trial Judge of $25,000 by way of exemplary damages, which we uphold. There will be a further award of interest on the damages, excluding the component of exemplary damages.
We have upheld the trial Judge’s finding that the report was defamatory of the plaintiff and that the imputations defamatory of the plaintiff were untrue. However, we have held that the finding of the trial Judge that there was an imputation that the plaintiff was guilty of sexual and physical harassment was incorrect, and that that imputation amounted to no more than that the plaintiff may have been guilty of such conduct. It is that conclusion which gives rise to the reduction of the component of general damages awarded against Dr Cornwall.
The trial Judge found that two members of the Review Committee, namely Mrs Roberts, the Chair, and Ms Wighton, together with Ms Anderson, the Committee’s consultant, were guilty of malice towards the plaintiff in the preparation of the report, and that the qualified privilege which members of the Review Committee would otherwise have enjoyed was, in their case, lost. We have held that the finding of malice was unjustified, and that the publication of the report by the Committee to Dr Cornwall was privileged. The members of the Review Committee in that capacity are therefore not liable to the plaintiff for damages for defamation. Subject to what appears below, judgment will therefore be entered in favour of the members of the Review Committee, Ms Anderson and the Commonwealth of Australia, which the trial Judge held to be vicariously liable for the publication.
Although it is not necessary for the decision on appeal, we have also found that the trial Judge erred in holding that Ms King, a member of the Review Committee and a Commonwealth public servant, was liable for the torts of Mrs Roberts, Ms Wighton and Ms Anderson either jointly, by virtue of the provisions of the Judiciary Act 1903 (Cth), or vicariously as a principal of Ms Anderson. We have found that there was no evidence to support the finding that this was a Commonwealth-State review under the SAAP Agreement, but, contrary to a submission of the Commonwealth, neither was it a welfare advisory committee established under s 11 of the Community Welfare Act 1972 (SA). Accordingly, had there been any primary liability for defamation on Ms Anderson or any member of the Review Committee, that liability would not have extended to Ms King or to the Commonwealth of Australia.
In relation to the two television broadcasts, we have confirmed the trial Judge’s finding that the plaintiff was identified in each of them except in relation to the allegation of sexual and physical harassment. In that regard we have found that the programs, as in the case of the report itself, conveyed a lesser imputation against the plaintiff that she may have been guilty of such misconduct. Otherwise, we have confirmed the trial Judge’s findings as to the imputations contained in the broadcasts. In our opinion the broadcasts did not constitute a report of proceedings in Parliament and therefore did not enjoy the protection of s 7 of the Wrongs Act 1936 (SA) or at common law. We therefore uphold the Judge’s decision to dismiss the claim of privilege of fair and accurate report. However, we conclude that both television stations have made out the extended defence of qualified privilege, namely that the defamatory parts of both broadcasts constituted a communication on or about a government or political matter, and that the conduct of the television stations in publishing the broadcasts was reasonable. There will therefore be a judgment dismissing the action against the two television stations.
Mrs Roberts was also sued as a participant in both television broadcasts. We have concluded that Mrs Roberts was party to the same imputations as arose out of the broadcasts as a whole. Unlike the television stations, Mrs Roberts pursued a ground of appeal against the rejection by the trial Judge of the plea of fair comment on a matter of public interest. We have rejected that ground of appeal, and reach the same conclusion on the question of fair and accurate report as we did in the case of the television stations. However, we have found that Mrs Roberts has not made out the extended defence of qualified privilege on the basis that, in all the circumstances, she did not act reasonably. We have therefore concluded that Mrs Roberts is liable for damages for defamation arising out of the television broadcasts. The amount of those damages is the same as that awarded against Dr Cornwall, excluding the award of exemplary damages, namely the sum of $280,425.10. For this amount plus interest Mrs Roberts is jointly and severally liable with Dr Cornwall to the plaintiff. We have dismissed the plaintiff’s cross-appeal claiming exemplary damages against Mrs Roberts and the claim for aggravated damages against both of the remaining defendants.
We have rejected Ms Rowan’s Notice of Alternative Contentions and have confirmed the trial Judge’s finding that none of the defendants owed a relevant common law duty of care to Ms Rowan. Her claim against them in negligence therefore fails. We have also confirmed the trial Judge’s finding that the tort of conspiracy has not been proved against those defendants against whom it was alleged.
We have concluded that, subject to hearing further submissions there appears to be no ground on which the State of South Australia itself should have a judgment entered against it. We have reserved for further argument the question of interest on the damages now assessed and the question of costs of the trial, including the appeals on costs by Senator Ryan and Mr Sumner, and the costs of the appeal.
APPENDIX
“SHELTERS IN THE STORM”
Extract from “Investigating Problems”, Part 1
[Those passages in italics are the passages of which the plaintiff complained. Numbers represent page numbers in the Report]
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CHRISTIES BEACH
*Please note that most of the information in this section has been compiled from departmental files.
In the course of the Review Committee’s work, Departmental files relating to all shelters were examined. It is evident that the Christies Beach shelter has frequently come to the attention of senior management in the Department and to the responsible Ministers – State and Federal – over a period of about five years because of deficiencies in financial management, unacceptable management practices and because of unsubstantiated allegations of professional and personal behaviour.
The Review Committee asserts that the following allegations concerning the Christies Beach women’s shelter should not reflect upon the public perception of and confidence in women’s shelters generally.
There is no other shelter about which claims of this nature and this volume have been received. The claims made below are clearly peculiar to one shelter and not systemic. No prejudice to any other shelter is intended or warranted.
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Examples of unsubstantiated allegations made to the Department about deficiencies in financial management, unacceptable management practices and professional and personal misbehaviour include:
·persistent over-spending and inadequate financial recording
·operating costs used to augment salaries without the authorisation of the Department
·inadequate personnel records and ineffective control of personnel and resources and granting of excessively generous terms and conditions of employment
·inappropriate personnel and financial management
·misappropriation of funds
·failure to co-operate with Departmental personnel in the normal course of funding procedures
·sexual harassment
·physical harassment and intimidation
·professional negligence
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·unprofessional, inappropriate and exploitative client counselling practices including breach of confidentiality (and claims by other agencies of inappropriate methods and subsequent need of rehabilitative counselling of some clients who had been the subject of the shelter’s counselling services).
Departmental personnel have documented visits to the shelter on three occasions during which attempts were made to clarify issues raised concerning mismanagement, inadequate financial controls and the allegations of misbehaviour. Visits were conducted in October 1983, February 1984 and March 1985.
The following is a list of some of the financial and management issues pertinent to Christies Beach shelter.
·Auditors have been changed often and on one occasion an auditor was obliged to qualify his report with the statement that twenty-five (25) payments could not be accounted for as no vouchers, receipts or other documentation was presented.
·Difficulty and delays in obtaining adequate financial statements at times.
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·Frequent and regular requests for advances. Christies’ deficit has been accumulating each year since 1981/82. Their deficit was paid out in 1984 through W.E.S.P. By the end of that financial year, they were again in deficit. Reasons given to the Department for the consistent over-expenditure were not satisfactory.
·The Auditor-General’s review in June 1985 examined the means employed by the Department to control the financial operations of women’s shelters. Christies Beach was cited in that report as one of two shelters “in a very poor financial situation”.
·In February 1986, Christies Beach received an additional $17,271 (through SAAP) backdated and paid to the end of the third quarter. Despite these additional funds, the shelter still required an advance of $20,000 at the end of the financial year. At the beginning of the Review, Christies Beach had a deficit of $19,150.
·Christies Beach is one of two shelters which have still not signed the financial agreement. (North Adelaide is the other shelter which has not signed). The agreement would bind them to spend funds for the purposes granted.
·Poor records or no records kept with respect to time worked, “time Off in Lieu” accumulated or taken, staff conditions, etc.
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·The Administrator’s salary was upgraded by the management committee to AO-1 level. This exceeds the salary provision in the grant. It is not clear whether other staff are paid less than the recommended CO-3 level (for shelter workers) or whether the short-fall is made up in some other way, e.g. from operating costs or from other income.
·In the last twelve months, two workers at Christies Beach shelter have taken six months and more than six months leave respectively on worker’s compensation. This should be of grave concern to the management committee on two counts: (1) that the way personnel are managed appears to be leading to burn-out and (2) that their worker’s compensation insurance premium will rise sharply as a result. This issue could also have implications for other women’s shelters because their worker’s compensation insurance premiums may also rise.
·At the time the shelter shifted premises, the shelter was inoperative for a protracted period. Crisis Care had received advice from the shelter that they would not be accepting referrals from 11/7/83 to 25/8/83. This came to the attention of the Department through Crisis Care which was unable to make referrals there from 11/7/83 to 4/10/83 (the date of one of the visits to the shelter by Departmental personnel).
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The shelter’s history, according to Departmental files, is chequered with unresolved complaints and unsubstantiated allegations made by consumers, workers and volunteers, members of the management committee and workers in other agencies.
Since the Review Committee has been unable to assess the accuracy of all allegations received by the Department, and since it is not the Review Committee’s mandate to attempt to do so, we believe that it behoves the Department to ensure that a separate and thorough investigation is undertaken by the appropriate authorities.
This step is also in the interests of the shelter concerned. If claims can be disproved, they should be dispensed with forthwith as their existence undermines confidence. If they can be substantiated, the Department must take appropriate action to protect consumer interests and to preserve public funds for their intended purpose. If claims can be neither proved nor disproved, then they should be described in Departmental files and in any communication concerning them as “unresolved” and a monitoring role maintained. Complaints made in the past should have been kept in a separate file as is the present practice. Allegations should have been referred to the appropriate authorities for investigation.
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The Committee is critical of past handling of such complaints and allegations. Some allegations have been treated as though they were disproved on the basis that their substance was denied. At least one complainant was sent a letter which stated that the matter had been investigated to the Department’s satisfaction: in reality, some of the matters raised were denied but not resolved, i.e., the truth was not established.
Whilst formal complaints were pursued in some way, we conclude that further action was warranted in some instances but did not eventuate at the time. It is particularly ominous that many complainants were unwilling to make a formal complaint because of what they described as fear of intimidation. Given the fact that reports of intimidation were a consistent feature of claims made to the Department over a long period of time, the Committee believes that the Department had an obligation to offer as much support as possible to those who made statements so that they felt able to formalise their allegations. The safety of those making allegations might have been enhanced through, for example, the offer of negotiating with the S.A. Housing Trust for a housing transfer where appropriate and advice to the Police Department of the need for protection of complainants.
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Had the Department provided greater support to those who made allegations, few women might have either subsequently withdrawn their allegations or continued to refuse to formalise them. The women making allegations could not be persuaded to take their complaints to the Christies Beach Shelter management committee, which would have been the normal procedure.
There is no formal record on file of Department of Community Welfare consultations with Crown Law. However, the Committee understands that discussions were held at senior level and that possible courses of action were considered by various Ministers. Whatever the case, the Review Committee believes that insufficient action was taken at the time.
While the Department was handicapped by the fact that few people would lodge a formal complaint, at the same time, the fact that alleged intimidation was a recurring theme should in itself have been sufficient cause to warrant further action.
The Minister of Community Welfare, the Hon. Dr John Cornwall, M.L.C., has referred allegations of misbehaviour to the Police Commissioner and the Commissioner of Corporate Affairs for investigation. The Committee commends him for this prompt action after these matters were brought to his attention.
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The Department may also be criticised for approving advances to the shelter without obtaining satisfactory explanations for excessive spending patterns. An instance of this occurred in December 1984.
At the end of the quarter, the shelter had a surplus of $17,760, but by February 15, 1985, they had spent the surplus and the quarterly grant and required $10,000 to cover costs until the end of the quarter (March 1985). The funding allocation to Christies Beach Shelter in 1984/85 was $133,350. Other shelters managed on their allocation for that period.
On 28/2/85, the Adviser on Women & Welfare (for the Department) forwarded a memo to senior staff in the Department referring to unsubstantiated allegations made concerning financial management and counselling practices; the fact that complainants did not wish to proceed with formal complaints for fear of recrimination; the request from Christies Beach Shelter for an advance of $10,000. The memo suggested that an audit be carried out by the Department.
Finance Officers then visited the shelter on 11/3/85. No detailed audit was carried out then or on any other visit to the shelter, despite instruction to do so. However, certain financial and accounting practices were noted. For example, not all paid staff appear on the wages schedule submitted to the Department; no entries had been made in the March cash book. No satisfactory explanations of excessive expenditure were put forward.
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On 13/3/85, the Senior Accountant of the Department sent a memo to the Director-General summarising the visit by finance officers to the shelter and pointing out that:
“assuming the current expenditure level … the shelter will require approximately $12-15,000 additional funds to 30/6/85.”
The memo further stated that:
“Although there are still some concerns regarding the financial administration of the Christies Beach women’s shelter, their current funding situation still needs to be addressed.”
The advance was subsequently approved for payment, and the pattern of over-spending the budget resumed. On 21/8/85, a further memo was sent to the Minister and Director-General from the Senior Project Officer for the Non-Government Welfare Unit regarding the financial situation at Christies Beach shelter following a request for yet another advance. This memo stated that Christies Beach was receiving what amounted to additional funding each quarter. One option put forward in the memo consisted of:
- paying out shelter deficits,
- examining shelter financial management systems (in line with the Auditor-General’s recommendations);
- requiring shelters to sign a legally binding document undertaking to operate within the budget.
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The Department began negotiating with shelters regarding a new financial agreement early in 1986, and a review of shelter management and administration was announced on 22/10/86 and commenced on 14/11/86.
The Department’s indecisiveness in dealing with complaints and allegations about the Christies Beach shelter is highlighted by the contrasting Departmental response to complaints made in 1986 by ex-residents and professionals about Hope Haven shelter. In the latter case, specific written complaints, many about tangible matters such as fire risk and physical conditions, were put to the Director-General who at once met the complainants for further discussion.
The Director-General then without delay confronted the management committee, both verbally and in writing, with statements of requirements to be met before funding would be continued.
The reasons for this different response include:
·a different political climate,
·a different senior executive management,
·more specific and more formally authenticated complaints over a shorter period,
·strong support by the other shelters for intervention.
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Some explanations have been put to the Review Committee for the Department’s irresolute stance on matters raised pertaining to Christies Beach shelter. Nevertheless, the Committee believes that these explanations do not excuse the long history of Departmental indecision and inaction.
The Review Committee considers that the Department’s response to the Christies Beach shelter’s request for advances, in light of the unsatisfactory explanations for excessive spending patterns, was inappropriate. This is borne out by the findings of the Auditor-General’s review into the means employed by the Department for Community Welfare to control the financial operations of women’s shelters. (June 1985)
Examination of the financial records of the shelter since 1982/83 shows a consistent pattern of over-spending regardless of the available funds. After one Departmental visit, the finance officer reported that:
“We have the impression that whatever they need they just go out and purchase with no consideration of the funds available.”
In conclusion, this shelter’s management has been characterised by persistent over-spending and ineffective control of personnel and resources. Unsubstantiated allegations call into question the quality of service delivery.
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The number, the consistency and the nature of allegations made to the Department by a variety of sources over a period of years was, in our view, sufficient basis to warrant further action by the Department to have these allegations investigated at least two years ago if not before and to ensure that Government funding was being properly applied.
As a result of the allegations made before and during the Review, the Committee itemised their concerns about the Christies Beach women’s shelter and forwarded these to the Minister of Community Welfare. The Minister expressed grave concern about these allegations and communicated with the Chief Secretary, the Minister of Corporate Affairs and the Police Commissioner, requesting an immediate investigation.
The Federal Minister for Community Services was also apprised of the situation and he concurred with the course of action determined by the Minister of Community Welfare. These investigations, instigated in May of this year, are still proceeding.
In view of the maladministration, both historic and current, of this shelter and in view of uncertainty as to whether services to clients are both fully available and appropriate, the Review Committee recommends that funding be withdrawn.
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