Griffiths v Ballard & Ors

[2008] HCATrans 227

[2008] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S6 of 2008

B e t w e e n -

JOHN HENRY GRIFFITHS

Applicant

and

PETER BALLARD

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

STATE OF NSW

Third Respondent

Application for special leave to appeal

GUMMOW ACJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 11.18 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR S.E.J. PRINCE, for the applicant.  (instructed by John M O’Connor & Co)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR G.R. KENNETT for the first and second respondents.  (instructed by Blake Dawson)

GUMMOW ACJ:   There is a submitting appearance for the State of New South Wales, which is the third respondent.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  May I mention one matter, and that is we would seek leave to amend the draft notice appeal in the manner set out in our reply submissions, paragraph 1 at page 147 of the application book and to renumber the other subparagraphs of that paragraph accordingly.

GUMMOW ACJ:   Is there any opposition to that?

MR GAGELER:   No, your Honour.

GUMMOW ACJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  The issues in the proceedings are set out in summary in the reasons for judgment of Justice Beazley at page 73 in paragraph 26.  They are, to put it shortly, and I will come back to them in just a moment, witness immunity, duty of care and the Trade Practices Act, section 52.  If before I come to the three of them I just say this, your Honours will have seen that the damages claimed are from the Commonwealth and Mr Ballard, its employee, on what are now two causes of action.  Others were involved before.  The Commonwealth provided for reward a service of analysis by its analyst, one of whom was Mr Ballard.  He had an appointment under the State Act ‑ ‑ ‑

GUMMOW ACJ:   When you say the Commonwealth provided for reward, was there some arrangement between the Commonwealth and the State instrument?

MR JACKSON:   They did it as a matter of contract, your Honour.  The Commonwealth had laboratories and the laboratories provided services to whoever asked for them, really.  Your Honour will appreciate that this is a case where the facts have not been fully found because of the stage of the matter but it was not in contest, your Honours, that this was a provision provided pursuant to contract and that Mr Ballard had an appointment under a State Act, the Poisons and Therapeutic Goods Act 1966 (NSW), section 37A.

The New South Wales police seized from the applicant a quantity of a substance that it was claimed was a prohibited substance, methcathinone, and Mr Ballard expressed opinions and gave certificates to the effect that the substances seized were that.  The allegation is that that was done negligently; indeed, including regulating the parameters of the test so that it would show methcathinone and it was not.  In consequence, the applicant spent two years and four months in prison for arrest until released pending the appeal and the appeal was successful.

The nature of the damages that are sought appear at page 175 in the draft statement of claim, paragraph 39 and they go through to the bottom of that page and page 176 at about line 29.  The claim, to put it shortly, is that the case against him would not have proceeded had the negligent analysis not taken place.  Your Honours will see that in paragraph 38, page 174. 

Your Honours, could I come to the question of witness immunity immediately.  It is accepted, as Justice Beazley said at page 81, paragraph 42, that the witness is immune from suit and that the immunity extends to preparatory steps.  There have been various ways in which that has been put in various cases but intimately connected with the giving of evidence is the most usual way in which it is put.  Your Honours will see, and we will accept that there can be observed a temporal sequence of events which lead, in the end, to Mr Ballard giving some evidence.

HAYNE J:   But an essential element of your claim is, is it not, that because the opinion expressed by the first respondent was formed without reasonable skill and care the applicant was arrested, charged and tried?

MR JACKSON:   Your Honour, I think the first of those matters is not quite correct.  I think he had been – the exact dates result, I think, in the arrest taking place first.

HAYNE J:   Then charged and tried?

MR JACKSON:   Yes, and in fact I think the charge was laid before a certificate was given, so I am sorry to be carping about what your Honour is putting to me but ‑ ‑ ‑

HAYNE J:   No, but does it not point to the fact that negligence, if it lies, is running parallel with, supplementing, perhaps departing from malicious prosecution?

MR JACKSON:   No, your Honour, there is no contention of malicious prosecution.

HAYNE J:   Just so.  There is none.  The claim that now is made is not that you brought about my prosecution maliciously but my prosecution continued because you were careless.

MR JACKSON:   Yes, your Honour, I accept that.

HAYNE J:   Is that not a development of the law that you would have us make, namely, that negligence is to run where the maintenance of the prosecution would not found malicious prosecution?

MR JACKSON:   I would accept, your Honour, that it involves some development of the law.  However, there is nothing to prevent, in our submission, a situation existing where more than one cause of action arose.

HAYNE J:   Exactly so, but is that the question that we would have to confront if leave were granted?

MR JACKSON:   Yes, it is, your Honour.  Yes.  Your Honour, that is, in our submission, a matter of importance.  Now, our submission is that it is not an area – if one is looking at the question so far as it derives from witness immunity, which is the basis on which the court fundamentally dealt with it below ‑ ‑ ‑

GUMMOW ACJ:   Yes, that is the problem, in a way.  What one is trying to focus on, I suppose, is Mr Gageler’s submissions at 141, line 50.  That has to be the starting point, yes or no to that, and if the answer would be yes you then move on to immunity, I suppose.

MR JACKSON:   That is the duty of care, your Honour?

GUMMOW ACJ:   Yes.

MR JACKSON:   Yes, your Honour, I accept that.  That is an essential element of it.  The way in which the Court of Appeal dealt with it, in effect, was to decide against us on that but having already decided on other bases.  The point we would seek to make about it, if I could go to duty of care immediately is that the reason why the Court of Appeal held against us on this point appears at page 110, paragraph 129.  The reason why that was held was because it sought to apply to the circumstances the statement of the Court in Sullivan v Moody in paragraph 60 of that case which is quoted at paragraph 127 in the reasons for judgment.

Your Honours will see that paragraph is one that refers to the possibility of there being duties owed to more than one person.  You will see, your Honours, at the bottom of page 109 of the application book that the Court observed:

People may be subject to a number of duties, at least provided they are not irreconcilable.

There is a reference to a medical practitioner.  Then your Honours will see, also, in the part highlighted at about line 17 or 18 on page 110:

the law would not ordinarily subject them –

the “them” being public authorities or their offices –

to a duty to have regard to the interest of another class of persons where that would impose upon them conflicting claims or obligations.

Now, if one looks at that statement of principle, one sees that there does have to be some conflict but here the task of analysis is an objective thing.  If one goes to the terms of the Poisons and Therapeutic Goods Act which should be in the documents your Honours have towards the front and it is section 37B.

GUMMOW ACJ:   I am not sure we have it all - is the draft notice of appeal at page 125 the final document, or is – you were talking about an amendment.

MR JACKSON:   Yes, I was, your Honour.  The amendment I was speaking about was in relation to the duty of care aspect and you will see it referred to in our reply submissions at page 147, paragraph 1 at about line 40.

GUMMOW ACJ:   I see.  Yes, thank you.

MR JACKSON:   That was the amendment I was seeking to make earlier. Your Honours, I was going to section 37B of the Poisons and Therapeutic Goods Act.  You will see:

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

(2)An analyst is required to carry out or personally supervise the carrying out of an analysis –

There is a requirement for a certificate, if required, under subsection (3) and then your Honours will see:

(4)The owner of any such substance or goods, or the person in whose possession or under whose control the substance or goods were when they were seized, is entitled to be provided with a copy of the certificate of analysis –

The point we would seek to make about it, your Honours, is that that recognises that there is an interest in the owner of the goods or the person in whose possession there was.  It does not give rise to there being conflicting duties because the situation is that that owner may wish to themselves rely upon such a certificate.  Could I take your Honours to what we say in our reply submissions at page 148 for just a moment, in particular paragraph 3, first.

What we would submit about the passage from Sullivan v Moody that is relied on is that the statements there recognise that there may be duties to two people.  We refer to the example of the medical practitioner and, third, your Honours, what are the conflicting duties that are involved here.  It is all right to say there are conflicting duties but what are they?  It is very difficult, we would submit, to identify something that satisfies that test.

We then in paragraphs 4 and 5 deal further with that aspect and your Honours are ending up with the perhaps argumentative observation in the sentence commencing at the top of page 149.  But, your Honours, what we would say is that you do have bodies putting themselves out to provide certificates of this kind.  They owe duties to the people who engage them.  Why do not they owe duties to the people who may be affected by them in particular circumstances like this?

Your Honours, the next point concerns the – what I should say, your Honours, is of course that even if it were the case, if I go back to the immunity for a moment, that the immunity were held to apply to Mr Ballard because in the end he gave evidence, the situation is not the same in relation to the Commonwealth.  It may be that the better view of the current law is that so far as the vicarious liability of the Commonwealth is concerned that his immunity would go over to the Commonwealth.  That is perhaps a debatable issue, but, the case is not one in which that is the only liability asserted against the Commonwealth.

Could I take your Honours in that regard to the nature of the allegations against the Commonwealth, what are described below as direct liability?  Your Honours will see at page 173 in paragraph 36 of the draft statement of claim the respects in which it was said that the Commonwealth itself had failed to exercise reasonable care.  Your Honours, what we would submit is that what public purpose is served by saying that a body which is in the business of carrying out tests for reward should not be liable for those affected by it not having a satisfactory system of operation.  Your Honours, that, we would submit, is a distinct issue of some importance.

Could I come, finally, your Honours, to the question of the Trade Practices Act.  Your Honours, by section 2A of the Trade Practices Act that your Honours will see in the papers, the Trade Practices Act applies to the Commonwealth when carrying on a business as if it were a corporation.  Now, that has the consequence that provisions such as section 52 of the Trade Practices Act are applicable and that includes a requirement – I am sorry, and section 52 - your Honours will know the terms of it, but one of the terms is that it applies in trade or commerce – to conduct in trade or commerce.

It was accepted, your Honours, that the Commonwealth was carrying on a business.  You will see that at page 111, paragraph 133, commencing at the bottom of the page and going over to the top of the next page.  Your Honours will see at page 112, about line 18:

It was also accepted . . . that the giving of the certificate of analysis was within trade or commerce . . . The question, therefore, is whether the contents of the certificate . . . was made in trade or commerce.

Your Honours, the Court of Appeal held that it was not for the two reasons which appear at page 115 in paragraph 141, commencing at about line 17:

The first consideration derives from the statutory force of the certificate, namely, that it may be used in evidence in legal proceedings –

The second was that the conduct was, in effect “witness conduct”.  Your Honours, what we would say is that there are many circumstances in which certificates are given in trade or commerce where their contents may have evidentiary effect.  There is no very persuasive reason, in our submission, why their contents cannot themselves be in trade or commerce, the commerce being the provision of such certificates.  Your Honours, the reasons of the Court of Appeal in this regard, we would say, effectively render the conduct of an employer of a person who ultimately becomes a witness exempt from the trade and commerce provisions of the Trade Practices Act – I am sorry, from section 52 of the Trade Practices Act – without any great support from the Act’s text.  Your Honours, could we say this case, in our submission, does involve ‑ ‑ ‑

HAYNE J:   Just before you go to that, going back to Division 2 of the Poisons and Therapeutic Goods Act, which is the root of the certificate, is it not, in light of 37B(5) to what uses can a certificate given under Division 2 be put other than section 39 use in legal proceedings?

MR JACKSON:   Your Honour, the two things that are excluded are trade purposes or advertisements so it cannot be used in or as part of an advertisement or referred to.  The second is for purposes of trade.  Now, presumably, that would say that one could not, in dealing with someone else, say this substance is such and such, here is a certificate that demonstrates that is so.  But it does not mean that the certificate cannot be used by, for example, the person who obtained it or other persons who might have it for ‑ ‑ ‑

HAYNE J:   For what purpose?

MR JACKSON:   I am sorry, I was just going to say, your Honour, for private purposes of manufacture if they were doing something of that kind.  Your Honour, trade purposes would seem, in our submission, to be a term which is related to actual dealings in trade.

HAYNE J:   So it could, for example, be used for internal quality control purposes of a production process?

MR JACKSON:   Yes.  What I was going to say, your Honours, was this.  The case, in our submission, does involve quite important issues which have not been the subject of authoritative consideration by the Court.  It has worthwhile prospects of success and it does involve, of course, an entitlement to damages of a person who was incarcerated for more than two years because of the errors ‑ ‑ ‑

HAYNE J:   Now, the damages are for imprisonment which was inflicted lawfully, ultimately held to be incorrectly, but the imprisonment was lawful imprisonment, was it not?

MR JACKSON:   The imprisonment was lawful, your Honour, yes, but the claims are not being made against the polity which effected the imprisonment.

HAYNE J:   I understand that.

MR JACKSON:   New South Wales is a party to the proceedings but not currently taking part in it.

GUMMOW ACJ:   Yes, Mr Gageler.

MR GAGELER:   If you look at the facts that are set out in Justice Beazley’s judgment at pages 76 through to 79 it is apparent that everything that AGAL did and everything Mr Ballard did they did for the purpose of Mr Ballard, as authorised analyst, reporting to the police or to the DPP at a later stage in the proceedings on the evidence that Mr Ballard would be prepared to give at trial.

When you look at the gist of the negligence action which is set out in the statement of claim beginning at page 158, but with the critical allegation at pages 174 to 175, this is paragraph 38, the critical allegation is but for the breaches of duty by AGAL and/or Mr Ballard the evidence Mr Ballard reported he would give at trial would have been different or it would have been qualified and Mr Griffiths – this is really the last line of that pleading – would not have been prosecuted or his prosecution “would have been discontinued”.

If you just turn over the page to page 176 and look at the Trade Practices pleading the gist of that is that the evidence Mr Ballard reported that he would give at trial was misleading because it was wrong or because it was unqualified.  That is the nature of the action that is sought to be brought.

In our respectful submission, to hold that witness immunity is an answer to both claims against both respondents, as did the Court of Appeal in the present case, really involves a very straightforward application of the principles stated in Cabassi v Vila repeated many times, including recently in D’Orta.  That principle your Honours find at page 7 in the original judgment of the associate Justice.

Really, the principle comes down to this.  It does not matter how an action is framed.  The rule of law is that no action lies in respect of the preparation of evidence as much as no action lying in respect of the giving of evidence.  It was held, your Honours, in the English case of Evans v London Hospital Medical College in 1981, frequently repeated, and so far as we can see, never doubted in England, that that witness immunity, one, extends to all stages of the preparation of expert evidence, in that case a toxicological report prepared for the purpose of a prosecution, and it extends to the protection not only of the witness but of the witnesses employed at, in that case the hospital.  We see that as nothing more than an application of the general principle stated in Cabassi v Vila and endorsed many times in this Court and, indeed, recently.

If that is right, your Honours, witness immunity is, as the Court of Appeal correctly held in our submission, a complete answer to the present claim, but if it is necessary to go further and ask is this a case where it can be said that a prosecution witness owes a duty of care to accused, one runs into pretty fundamental problems, applying the principles in Sullivan v Moody.

In our respectful submission, this is a pretty clear‑cut case where the imposition of a duty of care would create tension, we would say incoherence, when one seeks to reconcile it with settled doctrines, perjury, so far as that relates to what is said in court and insofar as things are said out of court with the tort of malicious prosecution, to which your Honour has already referred.  It really runs roughshod over the carefully crafted elements of the tort of malicious prosecution, in particular, the requirement of malice and also the requirement for the conduct to occur in relation to the initiation of proceedings.

But, moving to inconsistency of duty, there is again, in our respectful submission, despite the submissions of Mr Jackson, a fairly clear‑cut case of inconsistency between a requirement that a witness act carefully in what is said in evidence, or the preparation of evidence, and a requirement that the witness act candidly.  It would be a somewhat strange requirement if it were said that the obligation of a witness before the court is to tell the truth, the whole truth and nothing but the truth carefully, and really that qualification is a qualification that undermines, to a significant extent, in our submission, the quest for truth that the requirement for candour in witnesses is designed to achieve.

If it is necessary to go further to look at the underlying section 52 claim, really, although the distinction is in some cases somewhat difficult to draw, Concrete Constructions v Nelson in this Court is sufficient authority for the notion that the requirement for section 52 that conduct be in trade or commerce requires, in some cases, a distinction to be drawn between the provision of goods of services in trade or commerce and the penumbra of circumstances that might attend the provision of those services and the content of the goods or services that might be provided on a commercial basis, the content of a book, the content of a lecture may not themselves be in trade or commerce and it is simply an application of that form of reasoning applied in the Full Federal Court on a number of occasions quite correctly that says the content of the evidence of an expert witness, even thought the expert witness might be paid, is not itself in trade or commerce.  If the Court pleases, those are our submissions.

GUMMOW ACJ:   Yes.  Mr Jackson.

MR JACKSON:   Your Honours, may I just deal with three matters.  Our learned friends said that everything done was in connection with evidence that might be given at the trial and took your Honours to page 175, paragraph 38.  But, your Honours will see that the nature of the case being made – I am looking at paragraph 38e at about line 28 - is that:

The proceedings would not have been commenced against the Plaintiff, or alternatively would have been discontinued prior to the commencement of the trial.

So one has to look at the nature of the case that is being made, that is, that proceedings were continued, or perhaps commenced – proceedings were continued or commenced in circumstances where that was brought about by the conduct of Mr Ballard and so on.  But, your Honours, could I also say, if one goes to page 130 at paragraph 13, part of the applicant’s summary of argument, it was not just a case of providing certificates.  Your Honours will see that there was a letter of advice written which, at the time of the proceedings in the courts below, the content of which has not been seen and so it is not just a case of providing certificates.  It is a case, your Honours, where other conduct is likely to have been engaged in.

The second point, your Honours, is that this is not a case which, in our submission, in any way involves any challenge to the proceedings that took place below in terms of challenging the trial or challenging the result of the appeal.  Your Honours, we would submit that it does not follow that because evidence was later given, all things done earlier should be treated as subject to the immunity.  If one looks at the purposes of the immunity, any pubic interest in favour of extending it, for example, to applying it to the employer could only rest on preventing collateral attacks on the judgment of the Court or to the public interest in allowing witnesses to freely give evidence.

Your Honours, it is difficult, in our submission, to see why, for example, such public interest would apply to – if one takes just one aspect of the case - the direct liability alleged against the Commonwealth.  Your Honours, that is something that is simply saying here is a body which engages in conducting tests and offering itself for tests and in those circumstances why should the fact that the tests may or may not end up with evidence being given about them, why should that exempt them from a direct liability if the system that they have for conducting and monitoring the tests is otherwise one which is negligent.

GUMMOW ACJ:   We will take a short adjournment.

AT 11.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.57 AM:

GUMMOW ACJ:   There are insufficient prospects of success with respect to the proposed ground relying upon the Trade Practices Act to warrant a grant of special leave on that ground.

The case in negligence, even if it could otherwise in law be made out, as to which it is unnecessary to express a view, could not succeed if the witness immunity doctrine is engaged in the circumstances of this case.  In this regard, the New South Wales Court of Appeal was right to reach the conclusion it did, respecting both the first and the second respondent.

Special leave is refused with costs.

AT 11.58 AM THE MATTER WAS CONCLUDED