(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cornwall v Rowan [2004] SASC 384
Case
[2004] SASC 384
Decision Date
CaseChat Overview and Summary
In the matter of Cornwall v Rowan, the High Court of Australia was tasked with determining the liability of various parties involved in a defamation case. The plaintiff, Ms Rowan, sought damages from Dr Cornwall, Mrs Roberts, and the State of South Australia for defamatory statements made during television broadcasts and in a report, which she claimed caused injury to her reputation and economic loss. The court had to decide whether exemplary damages were appropriate, the extent of liability of the various defendants, and the appropriate quantum of damages.
The legal issues before the court included whether there was sufficient evidence of malice to warrant exemplary damages, the extent of liability of the defendants, and the appropriate quantum of damages to be awarded to Ms Rowan. The court also had to consider the role of the State of South Australia in the defamation and whether it could be held vicariously liable for the actions of Dr Cornwall and Mrs Roberts.
The court held that there was no sufficient evidence of malice to justify exemplary damages. It found that Dr Cornwall and Mrs Roberts were jointly and severally liable for the defamation, with the full amount of damages to be borne by them. The court determined that the State of South Australia was not vicariously liable for the actions of Dr Cornwall or Mrs Roberts, as these actions were not within the scope of their employment. The court also reduced the general damages for injury to Ms Rowan’s reputation and increased the economic loss component, setting the total damages at $280,425.10.
The court's final orders were that Dr Cornwall and Mrs Roberts were jointly and severally liable for the full amount of damages, including interest. The State of South Australia was not liable for the defamation, and its appeal was dismissed. The defamation defendants were ordered to pay the full amount of damages to Ms Rowan.
Orders
Orders of the court
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Background
Background to the litigation
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 FACTS4.1 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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. $190,000.00Economic loss (loss of earning capacity) 55,819.00Medical and pharmaceutical expenses and costsof 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.