Griffiths v Ballard
[2006] NSWSC 245
•10 April 2006
CITATION: Griffiths v Ballard [2006] NSWSC 245 HEARING DATE(S): 22 December 2005, 1 February 2006, 7 March 2006, 21 March 2006
JUDGMENT DATE :
10 April 2006JURISDICTION: Common Law Division JUDGMENT OF: Rothman J at 1 DECISION: (a) Appeal allowed in part; (b) The orders of Associate Justice Harrison issued on 25 August 2004 be quashed and in lieu thereof the Court makes orders in the following terms; (i) Leave is granted to the plaintiff to file the Further Amended Statement of Claim attached to the affidavit of John Edmund Michael O’Connor of 26 July 2004; (ii) Proceedings against the first defendant are dismissed; (iii) Paragraphs 16, 29,43 and 44 of the Further Amended Statement of Claim are struck out as are the words "jointly and severally” and “the First and“ from paragraph 50 thereof; (c) Leave is granted to file the Second Further Amended Statement of Claim; (d) The application of the second defendant for a stay of proceedings is dismissed; (e) The second defendant shall pay one third of the costs of the plaintiff on the motion before Harrison Assoc J and on appeal, as taxed or agreed. CATCHWORDS: Costs - practice - stay - shared costs - success of one of two jointly represented co-defendants - leave to file Further Amended Statement of Claim - partial success on appeal and costs - stay of proceedings pending further appeal refused LEGISLATION CITED: Suitors Fund Act 1951 (NSW)
Uniform Civil ProceduresCASES CITED: Griffiths v Ballard [2005] NSWSC 1350
Oshlack v Richmond River Council (1998) 193 CLR 72PARTIES: Appellant - John Henry GRIFFITHS
First Respondent - Peter BALLARD
Second Respondent - Commonwealth of Australia
Third Defendant - State of New South WalesFILE NUMBER(S): SC 20188/2003 COUNSEL: Appellant: Mr E Lennon QC
Respondents: Mr S Gageler QC with Mr G KennettSOLICITORS: Appellant: John M O'Connor & Company
Respondents: Blake Dawson Waldron
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
JUSTICE ROTHMAN
10 April 2006
20188/2003
1 HIS HONOUR: On 22 December 2005 reasons for judgment were issued by me and orders proposed, upon which I invited submissions by the parties. The issues between the parties arising from that invitation have changed, even over the time between the handing down of the proposed order, the first appearance thereafter and the finalisation of the argument orally and in writing.
2 There is no issue as to the appropriateness of an order allowing the plaintiff to file the pleading which was the subject of argument before me, or the dismissal of the proceedings against the first defendant. Further, there is agreement as to the paragraphs that ought to be struck out to effect the rulings that I have made. The issues that arise concern some matters associated with “jockeying” between the parties. That jockeying arises because the second defendant has indicated that it proposes to appeal, or seek leave to appeal, against any judgment that may issue. In summary, the primary issue is whether leave ought be granted to file a Second Further Amended Statement of Claim subsequent to the document upon which the parties based their argument before Associate Justice Harrison and me. This document would reflect the orders I have granted and clarify the basis upon which the plaintiff alleges that the second defendant, the Commonwealth, is liable. The secondary issue is that the second defendant, because of its intention to appeal any judgment that issues if it reflects the reasons already given (and it will), seeks a stay of the proceedings beyond those steps which have arisen directly from my earlier judgment and, of course, any steps taken in relation to such appeal.
Background
3 Given the nature of my earlier judgment, Griffiths v Ballard [2005] NSWSC 1350, it is unnecessary to repeat the details of the dispute between the parties, but it is necessary that some background is provided. The plaintiff, a chemist, was found in possession of a substance which the police thought was methcathinone. The first defendant was a chemist employed by the Commonwealth of Australia in its Australian Government Analytical Laboratories and was authorised to test the substance for the purpose of criminal proceedings. The allegation against the first defendant is that he “fudged” the results of the testing by manipulating the testing machines. The plaintiff was originally convicted and, when the evidence of this “fudging” was drawn to the attention to the Court of Criminal Appeal, he was acquitted. The plaintiff sued, relevantly, the first defendant and the Commonwealth (who employed the first defendant). Each of those defendants moved to strike out the proceedings and were successful before Associate Justice Harrison. The plaintiff appealed. The plaintiff was successful, almost entirely, against the Commonwealth, but unsuccessful against the first defendant. The success of the strike out motion depended upon the application of the immunity of witnesses to proceedings, especially the first defendant and the effect of that immunity on his employer.
4 Part of the rationale behind my judgment of 22 December 2005, so far as it relates to the Commonwealth, was the nature of the claim against the Commonwealth and whether this was confined to vicarious liability for the actions of the first defendant. It was my view that at least one construction of the Further Amended Statement of Claim was that the Commonwealth was alleged to be liable for conduct beyond the role of Mr Ballard, the first defendant.
Formal Orders
5 I will make formal orders allowing the appeal in part and overturning the orders of Associate Justice Harrison made on 25 August 2004 in a slightly amended form to that proposed in the original judgment, being the form agreed between the parties. Likewise I will grant leave, as foreshadowed, for the plaintiff to file the Further Amended Statement of Claim which formed the basis of the argument before her Honour at first instance and before me on appeal. I shall dismiss the proceedings against the first defendant. I shall strike out, as well as paragraphs 16 and 29, paragraphs 43 and 44 of the Further Amended Statement of Claim. Each of the above matters is uncontroversial and agreed between the parties as appropriate to reflect the reasons for the judgment already delivered.
Second Further Amended Statement of Claim
6 As stated above, the plaintiff seeks to file a Second Further Amended Statement of Claim (SFASC) which, the plaintiff submits, reflects the reasons for judgment of 22 December 2005. That submission is only partly correct. The SFASC reflects the orders dismissing the proceedings against the first defendant, Ballard, and the striking out of a number of paragraphs of the Further Amended Statement of Claim. It also, controversially from the point of view of the Commonwealth, seeks to expand paragraph 36. Relevantly, the new paragraph 36 particularises the failures by AGAL (the Commonwealth) to exercise reasonable care and includes: the conduct of the analyses; the devising of a system of supervision and control to avoid the risk of an incorrect certificate; effective checking by another analyst of various aspects which are stated in the pleading; a failure to draw attention to the anomalies in the analyses until after the commencement of the trial; and, to advise the DPP fully and accurately of the method and results of those analyses.
7 The matters pleaded in paragraph 36 expand on the duties and breaches otherwise contained in paragraphs 30 through to 35 of the Further Amended Statement of Claim and purport to reflect the interpretation adopted by me as a possible interpretation of the pleadings in the reasons for judgment of 22 December 2005. That judgment said:
- “[42] … While the claim against the Commonwealth, at common law, on the pleadings, includes vicarious liability arising from the conduct of Mr Ballard, it is not confined to that basis.
- [43] The pleadings as set out earlier claim damage from the Commonwealth because it did not take reasonable care in the conduct of analyses and to advise the DPP, fully and accurately, of the method and results of those analyses. Such a pleading is capable of being understood as going beyond the actions of Mr Ballard alone. It may include the procedures adopted by the Commonwealth to ensure accuracy of analyses and advice, including appropriate checks and balances. …
- [48] In circumstances where there is an argument that the liability of the Commonwealth is for conduct beyond the role of a witness … there is an argument available that the immunity does not apply and the discretion to strike out the claim has miscarried to the extent that it relies on the immunity.”
8 On 1 February 2006, when the matter first came back before the Court to agitate the issues arising from the orders, the Commonwealth submitted, albeit at a very preliminary stage, that it would be appropriate for the manner in which the plaintiff puts his case beyond vicarious liability to be ascertained with particularity so that, in the event of any appeal, the appeal court would not have the same difficulty as did I, namely, some doubt about the extent to which and the manner in which liability was claimed against the Commonwealth. Further, even if an appeal is not agitated, the Commonwealth submitted, clear particularisation is necessary for the proper progress of the matter.
9 The Commonwealth was correct at that stage. It is far more advantageous and appropriate for the Court to be aware of the precise way in which liability is claimed against the Commonwealth. While the Commonwealth’s position changed in relation to the desirability of filing the SFASC, it cannot point to any substantial prejudice associated with the filing of that document; I grant leave to the plaintiff to file the Second Further Amended Statement of Claim.
Costs
10 In a situation such as this it is an unfortunate aspect of the drafting of the Suitors Fund Act that the parties, for different reasons, are not entitled as of right, to payments from the Suitors Fund. My original proposal for costs was that the second defendant, the Commonwealth, pay one third of the costs of the plaintiff as taxed or agreed. The plaintiff supports an order in those terms.
11 The Commonwealth submits that the “plaintiff ought to pay some small percentage of the first and second defendant’s combined costs.” This result derives from a combination of factors. Firstly, Mr Ballard, behind whom the Commonwealth stands in a financial sense, was successful before Associate Justice Harrison and was successful on appeal. The proceedings have been struck out against him and were it not for his relationship with the Commonwealth, he would be entitled to his costs. On the other hand, the plaintiff is entitled, as against the Commonwealth, to the costs below and the costs on appeal for all aspects of the claim other than misfeasance in public office.
12 The Court will usually order that costs of the successful party be paid. That proposition is both trite and, because of its generality, not totally accurate in cases in which there has been partial success on an appeal. While costs will generally follow the event, it is important to understand that costs are not awarded to punish an unsuccessful party, but rather to indemnify the successful party against that which is reasonably incurred in enforcing that party’s rights. (see UCCP Rules 42.1; Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] and [68], per McHugh J)
13 The difficulty in the present situation is that the overwhelming amount of time and effort was expended on the issue of witness immunity. While it is true that the original notice of motion before Associate Justice Harrison relied upon other grounds for the dismissal of the proceedings, it was on the issue of witness immunity that the Commonwealth was successful. An analysis of that hearing’s transcript and written submissions demonstrates once again that the preponderance of costs were expended on the witness immunity issue.
14 The courts, in the awarding of costs, will take a broad approach to the question of costs. In this case, it is inappropriate to differentiate between Mr Ballard and the Commonwealth given the nature of the relationship and the manner in which the issues have been argued.
15 The proceedings, insofar as these issues are concerned, were commenced by a notice of motion of Mr Ballard and the Commonwealth. Mr Ballard and the Commonwealth, acting in one interest for the purposes of these issues, were successful before Associate Justice Harrison, and successful in relation to a minor aspect (in terms of time and effort) on appeal. The plaintiff was unsuccessful before Associate Justice Harrison and has substantially had that issue corrected at least as against the Commonwealth. In the circumstances, I would ordinarily have ordered costs against the Commonwealth in relation to the plaintiff for almost all of the proceedings before her Honour and myself. I make allowance for the fact that Mr Ballard has been wholly successful, but given the relationship between Mr Ballard and the Commonwealth and the nature of the issues agitated, I do not consider it appropriate for the Commonwealth to have costs awarded to them on these issues and I make the allowance for Mr Ballard’s success by reducing substantially the costs I would otherwise order for the plaintiff. I adhere to the view originally expressed that the second defendant shall pay one third of the costs of the plaintiff as taxed or agreed being costs of the appeal and the notice of motion before Associate Justice Harrison.
Stay
16 The Commonwealth seeks a stay of the proceedings so that it may seek leave to appeal to the Court of Appeal (assuming such leave is necessary) and in order to obviate any further expenditure in circumstances where that expenditure may prove futile.
17 The plaintiff relies on the principle that, as the successful party, he should be entitled to the fruits of his victory. This principle usually applies in circumstances where a final judgment has issued, not to guide whether there should be directions issued by the Court as to the future conduct of the matter.
18 The general approach of Courts in the situation such as this is that the filing of an appeal and/or application for leave to appeal does not of itself stay proceedings and, because of the effect that a stay would have on the proper progress of proceedings, there is a general discouragement of interlocutory appeals; proceedings ought not generally be stayed because of interlocutory appeals. Sometimes, however, there are exceptional situations. As I understand the nature of the proposed appeal from my judgment, the Commonwealth will seek to agitate the extension of witness immunity to an employer of a witness where, at least, the business of the employer is the provision of the expertise relied upon for the evidence of the witness. This is an extension of the witness immunity as thus far established.
19 I approach the question of whether to grant a stay on the basis of balancing, on one hand, the right of the plaintiff to an expeditious hearing and, on the other, the right of the defendant to avoid unnecessary cost and effort.
20 The added complication is that the result of any subsequent appeal may be that the appellate courts will take the view that the issues of principle raised by the Commonwealth ought to be agitated at final hearing rather than on an interlocutory basis. There can be little doubt that the completion of the pleading process (i.e. the filing of a Defence and any reply) would be of assistance to any appellate court in the defining of the issues between the parties.
21 I am ultimately persuaded that the Court ought not to grant a stay at this stage. The delays inherent in the ultimate appeal process (whether or not successful) can be substantial and the plaintiff ought not to be prejudiced to that extent. Further, any unnecessary expenditure by the second defendant can be overcome by appropriate orders for costs if the Commonwealth are ultimately successful in any further appeal on these interlocutory matters. We are currently only at a stage at which pleadings need to be finalised and where there should be, subject to the exercise of the discretion by the appropriate officer of the Court, directions as to particulars, discovery and perhaps interrogatories. These are matters I will leave to the Registrar. I refuse the stay of the proceedings.
22 I make the following orders:
a Appeal allowed in part.
b The orders of Associate Justice Harrison issued on 25 August 2004 be quashed and in lieu thereof the Court makes orders in the following terms:
i. Leave is granted to the plaintiff to file the Further Amended Statement of Claim attached to the affidavit of John Edmund Michael O’Connor of 26 July 2004;
ii. Proceedings against the first defendant are dismissed;
iii. Paragraphs 16, 29,43 and 44 of the Further Amended Statement of Claim are struck out as are the words “jointly and severally” and “the First and“ from paragraph 50 thereof;
c Leave is granted to file the Second Further Amended Statement of Claim.
d The application of the second defendant for a stay of proceedings is dismissed.
e The second defendant shall pay one third of the costs of the plaintiff on the motion before Harrison Assoc J and on appeal, as taxed or agreed.
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