Harradine v The Commonwealth of Australia (Child Support Agency) - [2018] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HARRADINE v THE COMMONWEALTH OF AUSTRALIA (CHILD SUPPORT AGENCY)
[2018] SADC 144
Judgment of His Honour Judge Stretton
20 December 2018
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
In October 2014 the Commonwealth in the form of the Child Support Agency (“the Agency”) purporting to act pursuant to the Child Support (Registration and Collection) Act 1988 garnisheed the plaintiff’s wages without notice to him, in circumstances where no monies were owed by him. The monies were eventually returned, however the plaintiff sued the Agency in the Magistrates’ Court on the basis that the Agency’s actions were negligent, constituted an intentional tort pursuant to the rule in Wilkinson v Downton and that the Agency’s actions in informing his employer for the purposes of the garnishee amounted to wrongfully accusing him of being a child support defaulter such as to amount to defamation. At the time of the Agency’s action, the plaintiff claimed he was under significant stress and anxiety, and alleged that the Agency’s actions were ‘the straw that broke the camel’s back’, and caused him psychological injury.
The matter proceeded in a very summary way before a magistrate, with the plaintiff’s claim being dismissed.
The summary trial miscarried. As the magistrate’s reasons indicate, the primary matters at issue between the parties were wrongly assumed in the Agency’s favour and against the plaintiff, the evidence which was primarily to the contrary was not adequately considered or analysed and as a result findings were made in terms of those wrong assumptions that were contrary to the evidence.
Further, given that the claim was for a psychological injury, it would have been appropriate for the Court, given its duty pursuant to s 38(1)(b) of the Magistrates Court Act 1991 to elicit from the parties and the witnesses and by the examination of evidential material the issues in dispute and the facts necessary to decide those issues, at least to identify to the parties that a fundamental issue was whether Mr Harradine suffered a psychological or psychiatric illness, and indicate what type of evidence would be necessary to determine such a claim. Although the plaintiff tendered medical records, these seem to have been overlooked. In the course of the brief hearing the magistrate refused the plaintiff’s request to call his doctor.
The magistrate wrongly admitted a bundle of documents handed up from the bar table by the Commonwealth comprising seemingly unproven partial records stapled to a “chronology” alleging facts but with no evidential basis, on the basis that they were business records, without considering their provenance, any of the tests within the business record provisions, or whether any of the makers of the documents should be called.
Held:
1. The summary trial miscarried to such a degree that it was appropriate to conduct a full re-hearing.
On the rehearing the plaintiff gave evidence, tendered a range of the Agency’s discovered records, and called three medical witnesses. The Agency called an officer who had played no role in the matter before the court, tendered further records, and called one medico-legal witness.
2. In the totality of the circumstances, the Agency in garnisheeing the plaintiff’s wages in circumstances where all agree there was no outstanding liability, acted in reckless disregard of the obligation inherent in the objects of the Child Support (Registration and Collection) Act per section 3(1)(a) to only act in relation to monies which a parent is legally liable to provide, in reckless disregard of its own policies requiring a series of steps be taken to ensure that a person be given notice of proposed garnisheeing of their wages, in reckless disregard of its own policy requiring it ensure the debt is correct before taking enforcement action, and in reckless disregard of any interest Mr Harradine may have in these obligations and policies being adhered to and in not having his monies taken when in fact no liability existed.
3. As a result of the Agency’s actions, the plaintiff suffered psychiatric injury in the form of an aggravation of the adjustment disorder he was suffering at the time, suffering greatly heightened levels of distress for a two to three week period until the monies were repaid.
4. Whether the plaintiff can recover for his injury at the hands of the agency depends on the scope of the current rule in Wilkinson v Downton about which there is some uncertainty. Further, whether the plaintiff can recover in negligence depends on whether the Agency had a duty of care towards the plaintiff in performing its functions pursuant to the Child Support (Registration and Collection) Act 1988, which is not only a complex question, but one with significant ramifications for both the Agency and for many persons in the plaintiff’s position. Given there is no appeal from this decision as a review of a minor civil action, it is appropriate to state a case to the Supreme Court for these two matters of law to be authoritatively determined.
Magistrates Court Act 1991; Judiciary Act 1903; Child Support Assessment Act 1989; Civil Liability Act 33(1); Child Support (Registration and Collection) Act 1988, referred to.
Harradine v District Court (SA) [2012] SASC 96; Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567; Bienke v Minister for Primary Industries and Energy [1994] FCA 1317; Sutherland Shire Council v Heyman (1999) 200 CLR 1; Spencer v Commonwealth of Austrlalia [2010] HCA 28; Ceneavenue Pty Ltd &Ors v Martin & Ors [2008] SASCFC 158; Bunyan v Jordan (1937) CLR 1; Magill v Magill (2006) 226 CLR 551; Jones v Dunkel (1959) 101 CLR 298; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Clavel v Savage [2013] NSWSC 775; Reggio & Anor v Horlock [No 2] 2017 SADC 5; Dickens v State of New South Wales [2017] NSWCC 1173; Wilkinson v Downton [1897] 2 QB 57, considered.

HARRADINE v THE COMMONWEALTH OF AUSTRALIA (CHILD SUPPORT AGENCY)
[2018] SADC 144
Introduction

In October 2014 Brendan Harradine was a schoolteacher stationed at Eudunda, about 100 kilometres north east of Adelaide.
Mr Harradine and his wife had separated. Pursuant to a Family Court Order in his favour, their child had just been returned to Adelaide from Coober Pedy, where the child had been taken without notice by the spouse. By arrangement between the parties’ Family lawyers, the child was delivered into Mr Harradine’s custody on around 7 October 2014.
Mr Harradine and his estranged spouse had until that time private child support payment arrangements in place. Mr Harradine was fully up to date with payments. Indeed as at 7 October having taken custody of and assumed responsibility for the full support of the child, Mr Harradine had no obligation to make any further child support payments to his estranged spouse.
Unbeknownst to Mr Harradine, his estranged spouse had contacted the Child Support Agency (“the Agency”), and notwithstanding that Mr Harradine was fully up to date with and had no outstanding liability to her, requested the Agency to secure child support payments from Mr Harradine to her.
Without contacting or notifying Mr Harradine, without checking whether private payments had been continuing (which they had) and if monies were in fact overdue or even owing at all (which they were not), on 23 October the Agency garnisheed Mr Harradine’s wages from the Education Department.
For a number of reasons surrounding the marital separation and family Court events as to the custody and welfare of his child, including what were subsequently proven to be fabricated rape allegations made by his estranged spouse and his consequent wrongful arrest on extant criminal charges, which in turn were threatening his employment as a school teacher, Mr Harradine was under extreme financial pressure and great personal stress.
It is not in dispute that the Agency’s actions in garnisheeing Mr Harradine’s wages without notice caused him shock, upset and concern.
Mr Harradine alleged that the Agency had a duty to him not to act in the way they did, that in breaching that duty he suffered psychological injury, that he was entitled to damages for that injury and also for defamation.
The matter came before the summary court as a minor civil action and after a brief hearing the claim was dismissed.
This is an application to review that decision.
Review of a minor civil action
Section 38 subsections (1)-(5) of the Magistrates Court Act 1991 (SA) set out the nature of a minor civil action. The legislation provides as follows:
38—Minor civil actions
(1)The following provisions are applicable to the trial of a minor civil action:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)the Court may itself call and examine witnesses;
(d)the parties are not bound by written pleadings;
(e)the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)After giving judgment in a minor civil action, the Court—
(a)should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)     The following provisions govern representation in minor civil actions:
(a)representation of a party by a legal practitioner will not be permitted unless—
(i)    another party to the action is a legal practitioner; or
(ii)    all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab)however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
Subsections (6)-(9) provide for the review of such actions in the District Court:
…………..
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)     The following provisions apply to such a review by the District Court:
(a)the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)     substitute a judgment that the Court considers appropriate;

or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
Blue J in Harradine v District Court (SA) [2012] SASC 96 said at paragraph 53:
1. The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
As can be seen, a minor civil action is a summary inquisitorial process rather than adversarial litigation, and accordingly a review of it requires an examination of the inquisitorial process undertaken by the Magistrate, to determine whether the fundamentals required of a full, fair and comprehensive inquisitorial enquiry identifying all the relevant issues between the parties and addressing them with all relevant and available evidence, and without legal error or procedural unfairness, have been satisfied.
It is plain that the fundamentals of the trial of any minor civil action must involve:
·A fair hearing by a competent, unconflicted and unbiased tribunal.
·The court identifying and addressing the real issues in dispute between the parties, whether or not they are initially pleaded.
·The court ensuring that so far is practicable all available evidence relevant to the real issues in dispute that the parties can and want to call, should be called, whether by the parties or the court itself.
·The identification by the court of the relevant legal principles applicable to the real issues in dispute.
·A competent fact finding approach by the court, with no apparent errors of logic or conclusion.
·A correct application of the legal principles to the found facts to arrive at a conclusion and hence the right judgement.
·Procedural fairness in the conduct of the minor civil action.
The review contemplated by s 38(7) of the Act must accordingly address itself to such of those matters as are relevant to the action before it.
Upon review, the parties will not necessarily be restricted to the way ‘they’ pled their claim or ran ‘their’ case, as the primary responsibility for identifying and defining the issues between the parties and eliciting evidence lay with the magistrate, not just the parties.
The role of this court is to remedy any failure of the summary court to fully and adequately do justice between the parties as required by section 38, remedy any error or omission in the inquisitorial trial process in the lower court, ie identify any real issues between the parties that were not so identified, hear any relevant available evidence that was not heard, and resolve the issues between the parties fully and finally, in the way they should have been before the magistrate.
Commonwealth application to be legally represented[1]
[1] T15 et seq.
When the matter commenced before me on 17 September 2017 the Commonwealth sought to appear by way of an AGS solicitor Mr D’Assumpcao. He made application for the Commonwealth to be legally represented.[2] In the spirit of the minor civil action provisions, the court enquired whether if permission were granted there might be agreement that neither side would seek costs.
[2] Application dated 13 September 2017, T14 et seq.
Mr Harradine said that so long as no costs were sought by either side, he would have no opposition to the Commonwealth being legally represented.[3]
[3] T18.
In an indication of things to come, the Commonwealth at first had no instructions on that issue,[4] putting that ‘the Commonwealth has at all times considered the applicant’s claims to be frivolous, unfounded and without content’,[5] then declined to agree,[6] and maintained based on a ruling by a judge of this court that full costs ought to follow the event.[7] The application to be legally represented was maintained.
[4]    T15-16.
[5]    T17.
[6]    T18.
[7]    Raggio & Anor v Horlock [No 2] 2017 SADC 5.
On the basis that Mr Harradine had been a solicitor until he ceased to practice some years prior, and from his submissions and documentation was well organised and capable of conducting his case with substantially more competence than a layperson, the court ruled that were the Commonwealth obliged to appear by way of a layperson, there would be the relevant degree of disadvantage contemplated by section 38(4)(a)(iii) of the Magistrates Court Act, as earlier set out. Accordingly the court ruled that the Commonwealth be permitted to be represented by a legal practitioner.[8]
[8] Ex tempore ruling delivered on 15 September 2017.

A little later, when the Commonwealth notified the court that it was instructing counsel from the separate bar, after further discussion between bar and bench it undertook not to seek any legal costs in the matter.[9]
[9] District Court transcript from 21 September 2018, T8.
Accordingly the matter proceeded on the basis that whatever the outcome, no order of legal costs would be made.
Application for reference to the Full Court
Mr Harradine had filed an application to refer the matter to the full Court. Such application was understandable given the contentious legal issue which sits at the very centre of this case, the issue of whether the Child Support Agency has any duty to people whose wages they garnishee, and if they do, what is the scope or extent of any such duty. The application was also understandable given that there is no appeal from a minor civil review. The court raised the application with the parties at the outset and it was initially agreed to leave that issue until the conclusion of the case.[10]
[10] T26.
When this court later determined to re-hear the case, the application for reference to the Full Court was withdrawn.[11]
[11] District Court transcript T139.
Attempted resolution
Section 38(2) of the Magistrates Court Act provides that either before or at trial of a minor civil matter the court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
In the spirit of that section the issue was raised by the court[12], and resolution was variously explored.[13] Both parties indicated a preparedness to attempt to resolve the matter.
[12] T26
[13] T27-T51.
However, for its part, the Commonwealth maintained at the same time that by virtue of Appendix C, referencing paragraph 4.3, of the Legal Services Directions made pursuant to the Judiciary Act 1903, the Commonwealth was prohibited from settling any monetary claim unless there was a meaningful prospect that liability was likely to be established, and that they had no such liability, and that accordingly ‘so far as any dollar amount is concerned, that is off the table’.[14] Mr d’Assumpcao conveyed that his instructions came not from the Agency or the Commonwealth, but from its insurer Comcover,[15]
[14] T40, T50.
[15] T40.
After a short consent adjournment to allow Mr Harradine to make an offer to resolve the matter and the parties an opportunity to settle, the Commonwealth indicated no settlement was possible as they were not able to offer Mr Harradine what the Commonwealth described as the ‘small monetary amount’ he had requested, or indeed offer him any financial sum at all.[16]
Commonwealths initial approach in this court – ‘written case’ filed[17]
[16] T50.
[17] T14
Three days prior to this review the Commonwealth filed a ‘written case’ purportedly pursuant to Supplementary Rule 179A.[18]
[18] T14
As the morning of the first day of hearing on 15 September 2017 drew to a close, it became apparent that notwithstanding that the matter was listed for a fully contested hearing Mr d’Assumpcao had believed the matter was only listed for half a day and consequently he was not available that afternoon or at various times on subsequent days.
In light of Mr D’Assumpcao’s unavailability to continue the hearing and for his convenience, the matter was adjourned to Wednesday 20 September 2017 with two days set aside, with the indication that the court may well rehear the matter, and may well require the makers of relevant disputed documents to be called, and so he would be required to have any witnesses he proposed to call on a rehearing available at that time.[19]
[19] T56-58.
The initial hearing in this court
On resumption of the hearing on 20 September 2017 Mr Harradine took the court through the case as presented to the magistrate.
Proceedings in the Magistrates Court
Mr Harradine’s minor civil claim filed on 11 September 2015 was for negligence, breach of statutory duty and defamation alleged to have arisen from the action of the Child Support Registrar notifying his employer that child support monies were owing and causing $913.27 to have been deducted from his pay without notice when no monies were in fact due or owing, allegedly causing him suffer distress, embarrassment, confusion, anxiety, insomnia and gastro-oesophageal reflux together with various consequential costs.
The Commonwealth filed a defence on 30 October 2015 admitting it garnisheed $913.27 from Mr Harradine’s salary, and admitting that Mr Harradine had at all material times paid private child support (‘non-agency payments’). In response to Mr Harradine’s pled claim that the Commonwealth at all material times knew he was fully paying his child support admitted the same, ‘save and except’ that between 3 June and 23 October it said it tried to contact Mr Harradine to ascertain what was being paid, and claimed the garnishee was ‘validly done’ and that they acted reasonably in what they did. Any breach of duty or liability for loss was denied.
On 12 May 2016 the Commonwealth took out an application to strike out Mr Harradine’s action as an abuse of process, and further or in the alternative sought summary judgment ‘as there is no reasonable basis for the action.’
On 15 July the magistrate granted the Commonwealth leave to bring forth the application, ordered that both parties file a written outline of submissions, and according to the record the matter was: ‘4. Adjourned for argument on 4 October 2018 at 10am (allow 30 mins).’
The Commonwealth’s filed outline summarised the child support legislative scheme, outlining how the Child Support Registrar (“the Registrar”) may by notice to an employer garnishee wages to satisfy a child support liability, and conceded the Magistrates Court had jurisdiction to hear the claim and that it was made within time. The outline then asserted various facts including that the mother had applied to the registrar to collect the child support monies, and that the registrar had in the months that followed made various unsuccessful attempts to contact Mr Harradine in relation to the mother’s claims. It then asserted that it had proceeded to garnishee Mr Harradine’s wages on 23 October 2014. It said that later that same day Mr Harradine contacted the Registrar and immediately established by way of bank records that he did not owe any child support. It said that Mr Harradine had not produced any documentation to support his claims of loss.
The Commonwealth’s outline then lists a number of cases in which Mr Harradine has been involved over time in support of the submission that ‘the plaintiff has experience in the court system’. That submission was entirely irrelevant, as its only relevance might be to whether the Commonwealth was entitled to be legally represented, and they had been granted that right some time previously. The only ostensible inference was that Mr Harradine might be some kind of overly persistent or vexatious litigant.
The Commonwealth’s outline then cites several authorities which in fact confirm the potential existence of a common law duty of care when a public authority exercises a statutory power or performs a statutory duty,[20] and which same authorities discuss the difficult task of identifying the scope and extent of the duty in each particular statutory instance, in particular to whom is the duty owed and what is the content of the duty.[21] In particular, the terms of the statute will be of critical importance.[22] The outline briefly argues ‘a duty of care does not arise’.[23] It briefly argues that there is no statutory duty.
[20] Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 and Bienke v Minister for Primary Industries and Energy [1994] FCA 1317.
[21] Sutherland Shire Council v Heyman (1985) 157 CLR 424.
[22] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
[23] Para 36.
The Commonwealth’s outline argued that the Civil Liability Act provides per section 33(1) that a person does not owe a duty to another person to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.
The Commonwealth’s outline concludes with submissions that there can be no claim in defamation for the issue of the notice to the employer, in particular as there would always be a claim of qualified privilege available to the defendant in such an instance of exercising a statutory duty.
Mr Harradine’s outline cited authorities for the principles that it is sufficient to dismiss such an application to observe that a case is not so fanciful such that it has no reasonable prospect of succeeding,[24] that there is a heavy onus on a party seeking summary judgment which such power should be exercised with caution and never exercised unless it is clear that there is no real question to be tried,[25] particularly so where evidential matters are important and that in any event a person should not lightly be shut out from a hearing and consequently the onus on the party applying for summary judgment is heavy. Mr Harradine’s outline concluded, somewhat presciently as it turned out, by citing the following passage from the case of Ceneavenue Pty Ltd & Ors v Martin & Ors[26] where Debelle J observed at para 82:
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions. (emphasis added)
[24] Spencer v The Commonwealth of Australia [2010] HCA 28.
[25] Ceneavenue Pty Ltd & Ors v Martin & Ors [2008] SASCFC 158.
[26] [2008] SASCFC 158.
On 4 October 2016 Magistrate Fahey heard argument and in brief reasons dated 22 December 2016 dismissed the Commonwealth’s application for summary judgment.
The matter was listed for trial on 26 April 2017. Mr Harradine was ordered to file “a summary of argument” 14 days prior to this, which he did, essentially summarising the legal aspects of his statement of claim.
The minor civil action before the magistrate
On 26 April 2017 the matter came before a magistrate for hearing. To say the matter then proceeded in a summary way is an understatement.
When the court convened, after a brief exchange whereby the Commonwealth were granted the right to legal representation, the substantive hearing commenced in the following way:
HIS HONOUR:        ….Mr Harradine, I had a browse of your outline of argument before court this morning and I gather from the last time we spoke you weren’t intending to call any witnesses. Is that the case?
MR HARRADINE:      No, that’s correct.
        HIS HONOUR:                   How long do you think your case might take?
        MR HARRADINE:      I would think half an hour.
        HIS HONOUR:                   Okay, and Mr D’Assumpcao?
MR D’ASSUMPCAO:    Probably no more than 15 minutes, given the written outline.
HIS HONOUR:        So should I have your outline open in front of me, Mr Harradine?
MR HARRADINE:      Not necessary, your honour.
        HIS HONOUR:                   Over to you, I suppose. Are you giving evidence?
        MR HARRADINE:      I presume so, yes.
The magistrate then swore Mr Harradine in, and said “go ahead”.
Mr Harradine cited authorities which recognised that cases of negligence could be made against agencies where it is shown that in exercising their statutory powers they acted consciously in contumelious disregard of the rights of a plaintiff or persons in the position of the plaintiff.
Mr Harradine gave evidence that on 23 October 2014 his pay had been wrongly taken by the Agency, and tendered a letter from the Agency admitting no monies were in fact owing,[27] together with the Agency’s 8 October notice to his employer to take the money,[28] and the resulting greatly reduced payslip advice for that period,[29] submitting that such material was to prove that the monies were simply never owed by him, and not payable.[30]
[27] P1 in the summary hearing.
[28] P2 in the summary hearing.
[29] P3 in the summary hearing.
[30] T6 at the summary hearing.
Mr Harradine said that the next aspect of his case was that the Agency was negligent both in not checking whether he was up to date prior to taking his money, and in failing to notify him in advance notwithstanding that he had been at his current address in Hambour Avenue Eudunda for around 10 months, which was in every respect his official address. He tendered his contemporaneous payslip, teachers’ registration, motor vehicle registration, ATO records, and phone and gas bills, pointing out that the Agency was itself a division of the ATO.[31] All these documents contained Mr Harradine’s Hambour Avenue address at the relevant time.
[31] P4 in the summary hearing.
Mr Harradine said that he had written a without-prejudice letter asking for a small quantity of recompense, which for some reason had been taken as a request that the matter be referred to The Compensation for Detriment Caused by Defective Administration Scheme, and tendered the decision pursuant to that scheme which concluded that the Agency’s administration of his matter had indeed been defective in failing to contact him prior to their actions and in failing to ascertain whether any monies were in fact owed by him.[32]
[32] P5 in the summary hearing.
Mr Harradine then continued his evidence, indicating that at the time of the Agency’s actions he was in an extremely vulnerable and stressed psychological state and under great financial pressure due to many factors including the marital breakup, he having been wrongly charged with serious criminal offences at his wife’s behest and having had to spend $25,000 through the Family Law Court to retrieve his child from Coober Pedy where she had been wrongly taken by his wife. He was in considerable debt with all his credit cards ‘maxed out’ and utility bills overdue. Documentation establishing this state of affairs was tendered.[33]
[33] P6. P7 and P8 in the summary hearing.
Mr Harradine gave evidence of, and tendered medical records from his treating psychologist in support of the pled physical and psychological damage he was seeking recompense for, noting the extreme levels of stress had caused two weeks of gastric reflux to occur.[34] When objection was taken by the Commonwealth to what Mr Harradine was submitting the medication prescribed by his GP was for, Mr Harradine suggested the GP be given a call by the magistrate, to which the magistrate replied:
HIS HONOUR:            I don’t think I’ve ever done that. I don’t think I’ve ever called a potential witness.
MR HARRADINE:       I think you can, with respect.
HIS HONOUR:            I don’t think I’m going to create that precedent though, Mr Harradine.
MR HARRADINE:       I don’t think it’s a precedent, your honour.
HIS HONOUR:            Well it would be a precedent for me and I am not going to do that.
[34] P9 in the summary hearing.
Mr Harradine gave evidence that the Agency’s actions came as an incredible shock when he was already in an extremely vulnerable position, resulting in a huge sense of grievance, upset and distress. He tendered his then phone bill and bank account indicating $35 in late fees incurred.[35]
[35] At T16, extracts for original P8 in the summary hearing.
Mr Harradine was cross examined with reference to some of the facts referred to in The Compensation for Detriment Caused by Defective Administration Scheme determination. He agreed that his wife must have requested that the Agency collect child support but he did not agree she had said his payments had been irregular. In relation to the findings concerning what the department did internally he understandably said he did not know, and he denied he had ever been sent any letters requesting that he contact the department, as he had not received any, nor had he received any phone calls. Mr Harradine gave evidence that he told the Agency at the end of 2013 that he was moving to Eudunda in the new school year 2014. Mr Harradine said that a Coober Pedy address appearing in documents produced to him by Mr D’Assumpcao was not his address at the relevant times.[36]
[36] T24 in the summary hearing.
In cross examination Mr Harradine said he continuously told the department about the distress their actions were causing him, but accepted that the monies were returned to him around 13 November 2014.[37]
[37] T27-28 in the summary hearing.
Mr D’Assumpcao then tendered a bundle of what seem to have been screen shots of some of the Agency’s records purporting to record addresses and actions taken in the matter, although Mr Harradine had only agreed with part of their contents. Mr Harradine was given no opportunity to object.[38]
[38] D1 at the summary hearing.
Mr D’Assumpcao then produced what he described as a ‘chronology’ to the court and put a series of matters to Mr Harradine from it. They were primarily matters Mr Harradine could not know, such as the detail of what his wife had told the Agency and what they had then internally done with that information.
Mr Harradine said that while what he was being shown looked like they were departmental records, he disagreed with a number of the entries, in particular some entries relating to the information purportedly initially received from his wife, at one point protesting:
OBJECTION: MR HARRADINE OBJECTS
MR HARRADINE: I am not the person for this evidence to be put through at all. I think Mr D’Assumpcao’s attempting to put evidence for his case through me which I don’t have knowledge of, direct knowledge of, and he’s asking me questions. I dispute this is an accurate record. That’s my position on this document.[39]
[39] T32 in the summary hearing.
Mr Harradine repeated that he had informed the Agency in December 2013 that he was moving to Eudunda, further stating that his wife had told the Agency in June 2014 that he was living in Eudunda in 2014.[40]
[40] T34 in the summary hearing.
Mr D’Assumpcao put to Mr Harradine that his evidence was contradicted by ‘the objective records before the court’ notwithstanding that there had been no records to that effect tendered at that stage, nor had any records to that effect been admitted by him. Mr Harradine responded that the departmental records discovered to him in fact specifically indicated a conversation between his wife and the Agency on 3 June 2014, wherein his wife told the department that he was living in Eudunda.[41] Mr Harradine agreed that he had made a 37 minute call to the department on 23 October 2014, adding that the brief departmental note of it did not include the primary issues of stress and grievance that formed much of the call. He said he had been given audio of the full 37 minute call. Mr Harradine said that much of what was in the bundle of documents was outside his knowledge.
[41] T34 in the summary hearing.
Mr D’Assumpcao then sought to tender the bundle. Mr Harradine objected as the contents were to a significant degree in dispute and that the chronology at the front had objectionable ‘spin’ in it. Without hearing any further argument on the topic the magistrate responded ‘I accept that these are their business records … I accept that you might say that some of those issues are in dispute, but they are just tendering them as their business records. They are accepted on that basis.’
It is to be observed that the tendered chronology was not a business record at all. At the review hearing in this court Mr D’Assumpcao said it was ‘sort of an aide-memoire’ that he had personally drawn up, which he shouldn’t have stapled to the attached documents and tendered, and which wasn’t in fact a business record.[42]
[42] District Court transcript T79-85.

Further, there was no evidence before the court that even the documents attached to the chronology were actually the Agency’s business records, or whether they were complete, whether they were accurate, or how they were compiled, and no ostensible consideration was given by the magistrate to the important issue of whether they should be tendered at all given the primary dispute as to crucial aspects of their contents, and if they were tendered whether the makers of the documents therein, particularly of the crucially disputed entries therein, ought to be called either to give direct evidence or be cross examined. As discussed in this court, some of the documents in the bundle seemed to have parts of the document cut off, and some did not even nominally state that they related to Mr Harradine.[43]
[43] District Court transcript T103-104.
Further, given that the claim asserted that the Agency in exercising their statutory powers acted consciously in contumelious disregard of the rights of a plaintiff or persons in the position of the plaintiff, and in knowledge on the part of the defendant of Mr Harradine’s true situation at all times, his vulnerability, and that they exhibited demonstrated negligence and a contumelious disregard of his interests, it is far from clear that the court ought to have accepted these brief, seemingly partial or incomplete, unproven notes or screenshots without any seeming consideration of how they were compiled, their role and hence focus, what they purported to record, and whether the relevant witnesses should be called. At the hearing in this court Mr D’Assumpcao conceded that the magistrate failed to consider the applicable business records provisions of the Evidence Act.
True it is that the summary court in its minor civil claims jurisdiction was not bound by the rules of evidence, but in the circumstances there were obvious problems on the face of the documents, there was nothing as to their provenance, completeness or even whether they all applied to the matter at bar. Further, given the issues of credibility and the nature of the claim, active consideration should have been given to whether these documents should have been admitted at all without any of these issues being addressed or a relevant witness or witnesses called.
The Agency called no witnesses and no further evidence. In addressing, Mr D’Assumpcao submitted that Mr Harradine’s sworn evidence be disbelieved on the basis of the documents Mr D’Assumpcao had tendered.
In addressing, Mr Harradine summarised his claim per the pleadings and his outline and submitted that the Agency’s evidence per the tendered records, such as they were, in fact showed that the Agency had been told he had moved to Eudunda by both parties well beforehand, contained no evidence that his payments were behind and to the contrary had evidence per file note from the wife that he was continuing to pay privately, and showed that the Agency never even inquired with either the wife or himself whether payments were behind which all now agree they were not, yet pursued him for payment anyway and sent notices to old addresses such as a PO Box in Coober Pedy and Mintabie, which were returned to sender, and conducted no enquires whatsoever to get his easily available current address for the purpose of giving him notice. Yet they correctly located him at Eudunda School for the purpose of garnisheeing his wages.
He cited the Commonwealth’s own The Compensation for Detriment Caused by Defective Administration Scheme determination that had made some of these findings in itself. He submitted that on the evidence the Agency had proceeded in a cavalier, negligent and incompetent manner. He submitted they had a duty not to act in that manner in taking his money, which such duty they had breached, and that they were liable in damages to him. He observed that the Agency had not called a single witness to seek to explain or justify their attitude, conduct or behaviour, which such attitude also justified an award of exemplary damages.
He submitted that, relevant to exemplary damages, the Agency had conducted the litigation unreasonably against him, citing that in the course of the litigation they had alleged in submissions he was behind in payments when on examination of their own documents as tendered at trial that was entirely baseless, had defended the matter at every turn and had made a baseless strike out/summary judgment/abuse of process application.
He claimed special damages of the $35 in late fees, $7 in interest he had incurred on the outstanding monies, and $200 for the significant mileage cost he had incurred to travel to receive treatment for the gastric reflux, together with general and exemplary damages.
The magistrate’s decision
The magistrate delivered a written judgment on 26 June 2017.
The magistrate’s reserved judgment consists of an introduction, then a summary of the plaintiff’s case, a summary of the defence case and then an extended discussion of the issues as the magistrate saw them. The opening introduction summarises the commencement of the civil action and scope of the claim and then sets out, as if it were uncontroversial background, a series of facts. That portion of the introductory section reads as follows:
The plaintiff seeks damages from the Commonwealth of Australia for an incident in which the plaintiff’s employer was asked to sequester child support payments from the plaintiff’s salary. On 8 October 2014 the Department of Human Services issued a notice to the plaintiff’s employer under section 45 of the Child Support (Registration and Collection) Act 1988 (Commonwealth) (the ‘Act’), requiring the employer to deduct fortnightly child support payments from out of the plaintiff’s salary at a rate of $913.27 per fortnight for two pay periods and thereafter at the rate of $301.89 per fortnight. The initial payments appear to be on account of arrears which the employer understood the plaintiff owed. The plaintiff was not in fact in arrears of any payments, but through no fault of the defendant this was not known to the defendant. On 23 October 2014 the plaintiff complained to his employer and on 13 November 2014 the Department for Human Services returned to the plaintiff the monies which had been sequestered out of his salary. The plaintiff claims the defendant’s actions amount to negligence, breach of statutory duty and defamation, and he seeks damages. (emphasis added)
The judgment then goes on to in a single paragraph summarise the plaintiff’s case, in a further single paragraph the defendant’s case, and then seems either to assume or make findings of fact in the subsequent discussion. Unfortunately, from his introduction it seems that the magistrate assumed at the outset before he even proceeded to consider the respective factual cases that the Agency “understood that the plaintiff owed arrears”, and further that “through no fault of the defendant this was unknown to the defendant.”
The magistrate should not have assumed these facts at the outset when on the evidence presented to him these matters were fundamentally at issue. Further, even on the very limited material tendered to the magistrate, it was quite wrong to say that the “employer understood the plaintiff owed” arrears, when there is no evidence anywhere even on the materials tendered that any arrears whatsoever were owed. It was also quite wrong to assume and conclude at the outset that it was no fault of the defendant not to be aware that arrears were in fact not owing, when there was no evidence before the defendant that anything was owing nor had they made any effort at all to determine whether any arrears were owing. The magistrate also seemed to overlook Mr Harradine’s sworn evidence supported both by the documentary records tendered and the decision of The Compensation for Detriment Caused by Defective Administration Scheme, that it was quite plain to the Agency that there was no suggestion that monies were owing. There are a number of other factually erroneous assumptions or findings, which given the already identified problems it is unnecessary to further traverse.
It is reasonably clear that the mentioned erroneous assumptions and failure to consider the mentioned evidence before him caused the magistrate, without any adequate analysis, to find that if “the defendant did owe the plaintiff a duty of care, in my view the defendant has amply met that duty.”
If the defendant did owe a duty to exhibit reasonable care not to deduct purported arrears from Mr Harradine’s account without taking reasonable steps to determine whether arrears were outstanding or to check the sums or to in fact check with either of the two parties to the event, it is very difficult to see how the magistrate could have reached the conclusion he did on the materials before him.
The magistrate appears to have failed to consider the findings made by The Compensation for Detriment Caused by Defective Administration Scheme which were plainly adverse to the Agency. The magistrate then goes on to find that the Agency based their assessment of the plaintiff’s arrears of child support obligations on the information provided by his former wife, when there was almost no evidence to support that finding and indeed, the only evidence before the magistrate, in the form of the screen shots tendered, indicates that when they had enquired at one point with the former wife, her information was that the private payments were continuing and that there were no arrears.
Further, the magistrate proceeded to make a finding that the agency accepted the information given by Ms Harradine “in good faith” and made “extensive efforts” to contact the plaintiff to verify the information, when there was little or no material before the magistrate to support such finding. Indeed such evidence as there was indicated virtually no efforts to obtain Mr Harradine’s current address from any of the places one might expect. Further, on the material before the magistrate the Agency knew that Mr Harradine was living and working in Eudunda, as that is where they sequestered his salary from. So on the one hand the evidence indicated that they were sending letters to defunct post office boxes in Alice Springs and Mintabie and receiving them back unopened, yet on the other hand the evidence before the magistrate indicated that they knew exactly where Mr Harradine was for the purposes of sequestering his wages. The magistrate failed to consider this glaring contradiction in the actions of the Agency and what it might indicate in terms of their competence, negligence and bona fides towards Mr Harradine.
Further, the magistrate failed to consider the failure of the agency to call any evidence whatsoever in the face of Mr Harradine’s case that in deducting monies that were not owing and in failing to inform him at his Eudunda home or workplace ahead of time, and in all the other circumstances set out by Mr Harradine, an adverse inference ought to be drawn against the Agency for failing to call any evidence concerning these specific decisions.
As a result of the above, in the Court’s view, the hearing before the magistrate completely miscarried. The primary matters at issue between the parties were wrongly assumed in the Agency’s favour and against Mr Harradine from the outset, the evidence which was primarily to the contrary was not adequately considered or analysed and as a result findings were made in terms of those wrong assumptions which appear to ignore the evidence before the Court.
Further, given that the claim by Mr Harradine was for a psychological injury, it would have been appropriate for the Court, given its duty pursuant to s 38(1)(b) to elicit from the parties and the witnesses and by the examination of evidential material the issues in dispute and the facts necessary to decide those issues, at least to identify to the parties that a fundamental issue was whether Mr Harradine suffered a psychological or psychiatric illness, and indicate what type of evidence would be necessary to determine such a claim.
During the course of the hearing, Mr Harradine in fact tendered medical records, however at no time did the Court either seem to consider in its judgment those medical notes, nor raise with the parties the adequacy of that material to determine whether a psychological or psychiatric injury existed, when it is obvious that a letter or report directed to that issue might have been obtained from the treating psychologist or indeed, through medico legal assessment.
Indeed as earlier discussed, Mr Harradine raised the issue of calling his General Practitioner with the magistrate who, notwithstanding his obligations under s 38(1)(b) to himself elicit the issues in dispute from witnesses and the facts necessary to decide those issues, simply indicated that it was not his practice and he would not be doing so. Neither, regrettably, did the magistrate indicate that for Mr Harradine’s claim to be properly adjudicated given the magistrates entirely non-inquisitorial stance, Mr Harradine would need to call that evidence himself.
In at least these ways the trial before the magistrate miscarried and so much so that it is not in the Court’s view able to determine the matter with reference to the transcript of the summary hearing.
In light of the many issues with the hearing before the lower court, Mr Harradine did not get the full and fair hearing he was entitled to, and accordingly this Court determined that the matter should be fully re-heard.[44]
[44] District Court transcript T137-138.
In undertaking such re-hearing the powers of the District Court are similar to those applicable to the original minor civil action, As earlier set out, pursuant to s 38(6)-(9) the District Court may inform itself as it thinks fit and in doing so is not bound by the rules of evidence and may re-hear evidence, acting according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. As indicated by Blue J in the earlier cited case, the court should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties because as Blue J also pointed out, it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
Observations as to conducting minor civil hearings appropriately
One of the fundamental issues that this Court occasionally but periodically sees when these reviews come before it is the failure of the summary court to, as here, conduct the hearing as a court-managed inquisitorial process designed to identify the issues in dispute between the parties, identify and elicit the facts necessary to decide those issues, and manage the hearing in the spirit of s 38(1).
The magistrate in this case, has simply sat back and let the case unfold before him as an ordinary adversarial proceeding, which it plainly is not.
It may be that it was at least in part for this reason that the real issues in dispute were not identified, nor were the facts necessary to decide those issues elicited. Whether this is a function of the fact that all or most other aspects of the magistrates’ roles are adversarial, or whether it may be a function of an absence of training for magistrates who may otherwise have no experience in inquisitorial litigation, is beyond the scope of these reasons, but it is an issue that keeps arising and I urge the magistracy to address it.
Having made these observations the court adds that no doubt the vast majority of matters before most Magistrates are conducted appropriately.
Re-hearing
The above issues were identified and discussed in some detail during submissions leading to the decision to re-hear the evidence in this court.[45]
[45] District Court transcript T1-138.
In the circumstances, the Court directed Mr Harradine to file an amended Statement of Claim, and the Agency file an amended defence. Mr Harradine’s amended Statement of Claim sought damages for intentional infliction of personal injury per the rule in Wilkinson v Downton,[46] and in the alternative, negligence. He also maintained his claim in defamation.
[46] [1897] 2 QB 57.
I then raised with both parties, in the spirit of section 38, the legal issues and the evidence likely to enable the facts to be properly elicited. This included the likely need for Mr Harradine to call evidence as to any suggested psychological or psychiatric injury, and the likely need for the Agency to call admissible evidence in support of their defence that they acted reasonably and not in breach of any alleged duty to Mr Harradine.[47]
[47] District Court transcript T140 et seq.
The case was adjourned for just over a week a week, and upon resumption[48] the Agency had instructed counsel from the independent bar, who sought a further 3 week adjournment to get up to speed, consider whether he would seek a referral to the Full Court, and advise his client. The adjournment was granted, also on the basis that upon resumption all would be ready to set the matter for full re-hearing.
[48] 28 September 2017.
On resumption[49] M Harradine indicated he had organised several medical witnesses namely his two GPs and his treating psychologist, and Counsel for the Agency indicated that they were looking at the issue of who had made the relevant decisions or who could speak for those decisions.
[49] 19 October 2017.
Counsel for the Agency sought and was granted a further adjournment to get instructions. The court was told that further efforts to resolve the matter were unsuccessful. Counsel for the Agency indicated that they had located a witness, Ms Berry who would give evidence as to the Agency’s actions. The parties indicated they would update their pleadings to fully articulate their respective positions.
The matter was eventually set for a three day hearing at which the court said it expected to hear all and any evidence from both parties concerning the deduction of monies from Mr Harradine’s wages, including any suggested justification for that, and reminded the parties of the principles articulated in Jones v Dunkel[50] that potentially arise if a party does not call a relevant witness. Mr Harradine said he would also endeavour to call his medical witnesses at that time as well, subject to their availability.
[50] [1959] HCA 8
The matter came on for hearing on 11 December 2017.
Mr Harradine gave sworn evidence. He produced and tendered a number of documents. He commenced with the issue at the root of all of this, the marital breakup.[51]
[51] The following transcript of Mr Harradine’s evidence has been subject to minor edits to omit repetition, some superfluous or repetitive questioning and for minor typographical error. T9-41.
A.I married …. a woman called Gereda (last name given), in September 2009. At that time I was working as a school teacher for the Department of Education and child development at an opal mining town called Mintabie, which is very approximately about 1,200 kilometres from Adelaide, north of Adelaide. On 2 August 2010, we had a child, Shaun, and I worked at Mintabie from 2009 to 2011 inclusive; three years. Because the school got so small, it only had about 13 students over those three years, but for 2012, enrolment dropped to only six students, so then I was transferred to an Aboriginal school at Ernabella for 2012. I worked at Ernabella for 2012 and, at the end of that year, I was transferred to Coober Pedy, which is about 860 kilometres from Adelaide. In about April, I was living at Coober Pedy and working there. … Sorry, your Honour, 2013 I was at Coober Pedy, and I was living there with my wife, her son, that is my stepson, and our child Shaun…. My wife got employment at the local roadhouse at Coober Pedy in about March and by about April she started going out on her own and leaving me with the children and in late May she separated and left to live elsewhere in Coober Pedy with the two boys. The separation occurred on 25 May 2013. When two days after we separated my wife proposed a regime of contact to both boys.
Q.What was the separation, was it civil or how was that?
A.There was - it was bizarre to me at the time but at about 1 May the principal called me into his office and put to me that there had been allegations of domestic violence perpetrated by me. When I first heard that I laughed but then over the next hours and days it became very, very upsetting to me. It was a ridiculous suggestion and when I spoke to my wife about it she appeared to become indignant and said that she will 'go and sort them out', words to that effect. So your Honour, my anxiety level is relevant to my case in this matter and that was the beginning of a sense of anxiety from there. The proposal that my wife suggested was that I have the boys four nights a week and she have them three. That suited her social life and her work life. The next day or a couple of days later she came back to me in a very distraught manner, very upset manner and suggested that I tried to put one over her in some way. It was entirely her proposal. I typed it up though and asked that she sign it. I wanted it to be made clear. I called it a parenting plan and that is in the (Tendered bundle exhibit A1 of Mr Harradine’s) documents. That was signed on 27 May.
Q.What page.
A.It is on p.89. ….Your Honour, the upset of the mother - if I refer to my then wife as the mother if that's okay - the upset of the mother was so extreme that she was hospitalised for about two nights while I had the children. That situation also was quite an upsetting circumstance. The mother then denied me contact and said she was going to see a lawyer. …. She said 'I know what you tried to do to me'. And she's given evidence in the Family Court proceedings that she went and spoke to a counsellor of some kind, support person. So for about a week and a half I didn't see the boys. I had a very close relationship with my son Shaun and attempted to be a good stepfather, and I think largely successfully, your Honour, to her son. But that was upsetting. She denied me contact for about a week and a half and then came back and agreed to three nights a week. So four nights caused enormous distress after she had spoken to somebody - and this was entirely her proposal, that parenting plan there - ….. After threatening to see a lawyer and denying me contact for a week and a half she agreed to three nights. I had the boys for three nights a week, that's Friday, Saturday and Sunday, and more than half the school holidays but then in October the mother rang me about 2 a.m. in the morning and said she was drunk and that she wanted to come over and -     …… That was on 3 October 2013 …..at about 2 a.m. your Honour, on 3 October. She came over and she was asking for hugs and – sorry your Honour, she asked - on the phone she asked if she could sleep at my place, which was the former matrimonial home, and I indicated that I didn't - she wouldn't be sleeping with me and that then she said she was drunk. I said I would 'come and get you. I will come and pick you up. Don't drive'. I warned her about driving and then she said 'No, they'll come looking for me' and I didn't know who 'they' was. But she came over. I didn't want to reconcile the relationship. I had formed the belief that she had been having an affair with her boss since about early April when she was going out at nights without me.
Q.Is this just supposition or is there anything. Did you actually witness anything relating to that.
A. Well she's living in a house owned by him, drives his car. In July the next year she went back to Coober Pedy to reside with him. …… On 3 October, your Honour. She slept in the boys' room. The next day she was sitting on the floor crying and bizarrely telling me that she wanted me to make her noodles and that she couldn't walk. So (I) quickly rang the counsellor and at his suggestion I whipped her off to hospital, your Honour, the local hospital. And she stayed there one or two nights again while I had the boys. That was whilst I had the boys for the October school holidays, my share of the October school holidays. I gave the boys back to her and she told me she would be returning to Coober Pedy on a particular day in October and when that date arrived she told me she would be extending her stay in Adelaide. I had the boys for half the October school holidays.   After … that 3 October attempt to reconcile …., she left and went to Adelaide and I was expecting the boys to come back to me for my three nights a week.
To cut the story short a bit, she didn't come back to Coober Pedy and stayed residing in Adelaide and a short time after October I met her new boyfriend in Adelaide and … she started living with him at Ridleyton a short time after meeting him, two or three weeks. ….. I was driving down to see them for a Saturday night, picking them up Saturday about noon and returning them about noon on Sunday, so I was getting one overnight day access, I intended to do that every week your Honour but it was around trip of about 1,800 km and it was very, very difficult, it was exhausting. The job at Coober Pedy was very demanding and a lot of alienated Aboriginal youth at Coober Pedy, alcohol was a problem so coming down for contact one day a week from Coober Pedy was almost impossible to keep up, I applied for a compassionate transfer and I was appointed to Eudunda, 100 km northeast from Adelaide. If I can refer to the involvement of the respondent now at this stage?
Q.Certainly, as you see fit.
A.The mother rang Child Support.
Q.Pause there. So you did move to teaching at Eudunda.
A.I did I moved to Eudunda on 17 January 2014.
Q.Yes and started teaching there.
A.Yes.
Q.Where did you live.
A.In Eudunda at an address of 7 Hambour Avenue, Eudunda.
Q.So the Education Department would have known that address.
A.Absolutely, your Honour.
Q.Go on.
A. In July the mother contacted the respondent and sought an assessment and I'm not particularly familiar with the terminology but she sought an assessment but I had been paying child support from separation every fortnight from my pay, I'd been paying it from May to cover that period from separation …. Right through 27 May 2013, beg your pardon, 25 May, that's when we separated.   ….. I just paid her an amount that I thought was fair, certainly she didn't complain about it, my belief was that it was more than I was due to pay. On top of that I was paying approximately $450 to go and visit the boys. From October, when the mother moved to Adelaide, from October I was paying - it was costing me about $450 a fortnight and then when I moved to Eudunda we arranged contact with both boys Friday and Saturday of every week so.
…..
Q.Did you tell her the address.
A. Yes, we more or less immediately organised contact with the boys and that was Friday and Saturday over the 2013 …. 2014 Christmas holidays. I had the boys virtually (all) that period. At Coober Pedy School you get seven weeks off instead of the usual six and I basically had the boys six weeks for that time and they were with me when I moved to Eudunda.
Q.So this was a civil, collaborative discussion with your ex-wife about all this.
A.Your Honour, yes. I will use the (term) 'ex-wife', sounds like it suits your Honour better. The ex-wife, I did her tax return for her after separation, I organised her windscreen replacement for her, I swapped over a tyre on her car, so as far as I was concerned notwithstanding the upset, I was determined in my mind, I had the belief to keep things as calm and amicable as possible, not to cause any distress to little Shawn, especially when we separated he wasn't then three years of age. Your Honour, in about October, I received a - October 2013, so this is after the mother, my ex-wife has left Coober Pedy. In October is my best recollection. 2013. I (then) received an expiation notice for a vehicle registered in my name which my ex-wife had taken since separation, a red light arrow infringement notice. On the day that occurred I was at Coober Pedy. It occurred in Adelaide, at Gepps Cross I think it was, your Honour. When I rang the mother about that and said 'Have you got an expiation notice', she berated me and told me angrily 'So you're going to try and put this on me'. The sense of having to be very careful about her reactions was a source of considerable anxiety for me, as was taking the boys away to Adelaide but, your Honour, I got the compassionate transfer to Eudunda, as I said, transfer on compassionate grounds and started seeing them two nights a week, Friday to Saturday, drive down to Adelaide, collect them and take them back to Eudunda and then deliver them back on Sunday night after two nights.
Your Honour, that's the background in relation to up to about March 2014 in relation to my personal circumstances.
In relation to the respondent's involvement, and I invite my learned friend to inform the court if I'm wrong in relation to these nuts and bolts, but in July my ex-wife contacted the respondent. July 2013, so a couple of months after separation. And as I understand the process she asked for an assessment but informed them that it was private collect, that is, child support would be a private collect arrangement as it had been since separation that I had been paying directly into her bank account child support. Child Support may have - … contacted me earlier but I can't recall that they did contact me on ….. 8 October 2013, and those conversations your Honour, those conversations were recorded certainly at that time, I don't know if the procedure has changed but they were recorded by the respondent.
I've been provided with a transcript of the conversation I had with the Child Support Agency earlier today I think it was your Honour, yes, and of the conversation of - ……
MR O'LEARY (Provides a copy of the transcript to the court – some discussion occurs)
EXHIBIT A2 Transcript of conversation between Mr Harradine and Janelle of the Child Support Agency dated 8/10/2013 tendered by Mr O’Leary. Admitted.
(Mr Harradine continued…) I invite your attention to p.13 of that transcript. My best recollection was this was the first contact with the Child Support Agency with me after separation. At the top of p.13 there is a discussion about sending me mail and then Janelle at the Child Support Agency indicates at line 11 I think it is that they have got my email address. That email address I've had since about 2003 and it's my current email address and it appears on the court's documents as well in this matter.
Q.So Janelle says, line 15, 'Yes we'll send it online'.
A.Yes, I'm particularly inviting your Honour's attention to the fact that the respondent had my email address.
Q.More than that, saying 'I'll send you correspondence by sending it online'.
A. With …. fairness to the respondent, they're referring to their online message system. ….. not so much to sending me emails. There's a system called 'CSA online' where you go in a particular website and log in, not your ordinary email and you get messages and can send messages from that. Basically I think it's referred to as a portal. I invite your attention to p.1 of A1. That is the email that I received from the respondent the next day 9 October 2013. Your Honour, I invite your attention to p.3 of A1. That is another email which I received from the respondent to that same address, the current longstanding email address that's dated 18 October. That email is talking about not having activated the CSA online system. Your Honour, I didn't make use of the CSA online system and on p.4 of A2 I received a letter saying that that CSA online account had been deactivated. … P.5 of …. A1. …. That indicates - that's a summary note in the respondent's database and it refers to me informing them in the last paragraph that I am moving to Eudunda in the school year. Your Honour, I have read the transcript and I say that what I actually said was that I was moving to Eudunda for the new school year and gave an estimated date of the best of my recollection your Honour from the transcript of 13 January, 2014, that I was moving to Eudunda. ….. On 9 December there was another telephone conversation with the respondent, that appears at p.6 of A1. Once again I refer to moving to Eudunda.
After I moved to Eudunda I changed address with various bodies and I am pretty certain that I did not change address with the respondent. But A1 p.7 your Honour, it refers to the electricity being connected at 7 Hambour Avenue on 16 January. A1 p.8 refers to the lease commencing at that address at Eudunda on 17 January, that is an email your Honour, that is an email of 7 January referring to the commencement of lease on 17 January. Your Honour, the Department of Planning Transport and Infrastructure that leases properties, I think in some case they might own them, generally they will lease properties from the owner, Hambour Avenue was owned privately. That department leased the house and then leased, sublet it to me. So the government housing department your Honour, the Department of Planning, Transport and Infrastructure knew of my address at Hambour Avenue and from 7 January the lease was arranged. Your Honour, on A1 p.9 is an email to my payroll section. On 24 January giving my address, Hambour Avenue. ….. A1 p.10 is an earnings advice, a pay slip if you will, it has my address on it at Eudunda and that that is dated 13 February. Your Honour A1 p.11 is a Telstra bill from my landline at Eudunda, it's addressed properly to me at Eudunda. ….. A1 p.12 is the Commonwealth bank account, the one which my pay was paid into. The last date on that statement your Honour, it is a Commonwealth Bank statement, the last date on that statement is 5 May. That shows my address your Honour.   ….. Your Honour, the account is still in joint names, hadn't got it out of my ex-wife's name at that point but it does show the address at Hambour Avenue. Your Honour, with the Registrar of Motor Vehicles I can't recall when I notified them but A1 p.13 shows that there's a renewal document dated 27 May at the correct Eudunda address. …… Then on 3 June 2014 my ex-wife contacted child support and asked them to start collecting for her and that conversation that she had was 3 June 2014 … audio has been provided to me and I typed up a transcript which appears - a part transcript which appears at p.14 of A1.    ….. In that audio that I have listened to I have heard my ex-wife tell the child support officer that exactly as said there, 'Do you know where he lives in case we need to send him a letter' and she says 'Eudunda'. At about two thirds, three-quarters down the page. ….. I invite your Honour's attention to the fact in that call that my ex-wife told child support that I live at Eudunda. That I'm a teacher, a school teacher and that she thinks I work at Eudunda School.
Q.Was that all correct.
A.Yes, your Honour. Although she also indicated that she doesn't have my phone number and she doesn't know the street. A2 p.15 that's the same, the same conversation of 3 June 2013 with my ex-wife and the child support officer. I invite your attention to the fact that the child support officer tells my ex-wife 'Now we will contact him and let him know we are going to be taking over collection and he needs to pay up'. Then again on the bottom of p.15 'We will contact him, if he wants to pay it manually to us he can do that, if not we will have to contact his employer and get the money from his pay'. ….. Two days later on 5 June 2014 I received, I beg your pardon, about that date, I received a registered post letter dated 5 June 2014 with my ex-wife's handwriting on it addressed to me at my correct address and also with the phone number of my landline. Telstra landline at that address. Your Honour, that envelope was written in my ex-wife's handwriting.
Q.It has got your phone number, has it.
A.Yes, your Honour. That appears at p.16 A1, p.16.
Q.She had your correct address and phone number.
A.She did have it as of 5 June when that envelope was posted.
Q.Yes go on.
A.Your Honour, A1, p.17 is a letter to me, now Ms Berry's statement[52] explains that that correct address shown on p.17 was populated after the event when I told them my address in October, so that this letter was actually generated, the address on that letter was generated in October, notwithstanding it is dated 8 July. So –
[52] Ms Berry was an officer of the Respondent whose statement had been recently provided to Mr Harradine when the matter was before this court. She was subsequently called to give evidence, as described later in this judgment.
Q.Just take it back a step, did you get that letter.
A.No, your Honour. I discovered it, I found this in the respondent's discovery your Honour.
Q.So when was it populated.
A.The address was populated, inserted into that letter of 8 July, the address was inserted into that some time after 23 October, 2014. …. (Discussion about the statement provided by Ms Berry) …… I apologise if she doesn't specifically refer to that letter, that's my belief, that that address was populated after October.
Q.Yes I see. Thank you. You go on.
A.In that year, as in most years, I am very quick to put in my tax return and as soon as the new financial year ticked over on 1 July, I put in my tax return. Your Honour, this letter is dated 8 July and I invite your Honour's attention to the 2013/2014 taxable income right at the bottom of that page on the left-hand side, that is p.17 of A1 … down the bottom left it refers to my taxable income for the financial year which finished seven days beforehand. It shows the sum of $87,908. Over the page is a notice of assessment for that same financial year ending 30 June 2014, p.18 of, A1 and the taxable income shown on that notice of assessment is 87,908.
Q.The tax assessment is dated 16 July.
A.Yes, so Child Support got the information a week earlier than that notice was dated.
Q.The tax office knows your correct address as at 16 July.
A.Yes, I invite your Honour's attention to that address on the notice of assessment as my correct address. …. I invite your attention to A1 p.19. That document was provided to me, I think, in the respondent's discovery and that is addressed to my employer dated 8 October. I invite your Honour's attention to the fact that it has my payroll number on it. That is my correct identification number with my employer. … That's the end of my evidence in relation to my contactability. I didn't hide my address from anyone and I certainly didn't deliberately not change - not notify the respondent of my address.
The respondent, when I spoke to them in the previous year, were encouraging about private collect and that I had no expectation that there would be any consequences for them not having my address - me not telling them.
Q.You weren't told to notify them of any changes of address.
A.It's a controversial issue in relation to a paragraph that the respondent puts on the bottom of its letters. I don't know how it chooses to put that on but it says 'Keep your details up-to-date. Tell us within 14 days of any changes'. My belief at the time was I was in no jeopardy, I wasn't hiding my address in any way whatsoever and, also, the respondent specifically stated to me they would not do such a thing, such as take money out of my pay, without notifying me first. That appears on transcript - …… I've got it in - I've got this book of documents, A1, divided up in broad sections, the first one was me being contactable.
One section I refer to as the immediate shock from the deduction and that has material in it which goes to my understanding of the respondent not conducting themselves as they did (should) conduct themselves. … If I might go now to p.61 of A1 This is about the shock that I had and the surprise at finding the money missing from my pay. In the morning of 23 October, as is my custom, I check my bank account. I had been suspended from work - this is something that I'll go back to but the situation was that I had been suspended from work pursuant to allegations that my ex-wife had made to police. I lived in fear that my employer would stop paying me whilst I was suspended, whether that was a reasonable fear or not is another thing but I did have considerable fear that they would stop paying me. When I checked my bank account and saw that the money was missing it was an enormous shock to me.
My financial situation was appalling at that stage. Perhaps if I just follow the documents through at this point instead of referring to the injury. On p.61 of A1 it has an email, an internal email where one person I spoke to, that is Jasmine Nelson who I spoke to, sent an email to Elizabeth Summers saying that I was shocked that this money had been taken out and I'd like to see the notice, have that in front of me when I call Child Support. This is all on 23 October, the day that I noticed the deduction. As soon as I was able to contact my employer to find out what was going on I did so. I received an email back in relation to my request to get the document, that's at p.62, and the actual document that they provided me with is on p.63. I say that that document on p.63 of A1 indicates that I hadn't paid Child Support for 10 weeks - about 10 weeks, that there were two deductions to be taken of $913. One had already been taken and caused me the shock that I received and then there was another one of the same amount to be taken out on the next pay day of 6 November and that the pay day after that, 20 November, then a rate of $301 per fortnight per pay. …. I will go on to why … why I was considerably shocked. I invite your Honour's attention to A1 p.64 - … that’s a transcript of when I rang the respondent on finding out that it was them that took the money out of my pay. I had recently received a letter from my ex-wife's solicitor asking about extra maintenance and spousal maintenance. So when I saw the money missing there was an enormous bewilderment with shock that somehow my ex-wife had sequestered my pay. It was some hours before I noticed on my pay slip that the reference for the missing money was the Child Support Agency. I was still - I was bewildered as to why it was removed. The level of bewilderment that I had was extreme, I felt numb, I had a reflux reaction, fright reaction where stomach contents came up into my mouth. Didn't come out as in vomit but came up into my mouth and back. I felt not quite in the present moment, felt floaty and numb. I will refer to my financial circumstances later but my financial circumstances were living from pay to pay and I'll give evidence that there was no reasonable prospect of mitigation, as has been suggested by the respondent. In that transcript of that conversation - that's got the wrong date on it, that conversation was 23 October 2014.[53] …. Up to (page) 70 is the first conversation I had with the respondent on the 23rd in relation to the deduction. Pp.64-70 is a conversation with a Child Support officer called Brad.  … I was so anxious about getting that money back that I called again and this time I spoke to somebody called Crystal.
[53] Mr Harradine references pages 64 to 75.
There is highly critical comments made by me about my ex-wife in those transcripts. Part of it, part of the psychological impact was the bewilderment that my ex-wife would tell Child Support, one of the hypotheses rushing through my head was whether my ex-wife had told Child Support I hadn't been paying child support to them which just of itself was bizarre, a bizarre impact and it was yeah, sorry your Honour, p.76, your Honour, I sent a number of online messages as well as looking to get the money back, that's an online message. This is part of the CSA online with Brad, Brad set up a portal on the internet site called 'CSA online'. So I started immediately using that to communicate with the respondent and I sent two messages on 23 October, the same day, and paid 76.81. I referred to the stress that it was causing me, that the child had been with me since 8 October, the night of 8 October, there had been Family Court orders that ordered the mother to return the child to the Adelaide metropolitan area. She didn't do that, your Honour, but she handed him over, she didn't come to the Adelaide metropolitan area, so she handed little Shawn over and he had just turned four at that point. 8 October, he was four on 2 October and I didn't see him for his birthday.
…
Your Honour, p.77 is another message of 23 October. One of the psychological impacts was anger, I felt very angry with the Child Support Agency and in that on p.76 in that message, that anger that I felt towards them was coming out, I asserted that they had done a tortious wrong to me and demanded that the sum be reimbursed. Your Honour, the upset that I had was so great at the end of that day, I sent an email, made an online booking on 23 October at 8 p.m., I sent an email. My recollection is that I got the first appointment I could, it was Friday 31 October with the psychologist whom I already had seen at least once, possibly twice I think.
…
Q.… Over other issues.
A.Yes. Dr Shri Maine ... On the 24th, the next day, I again asked that the money be urgently be reimbursed at p.79 of A1. I gave my bank details. Over the whole time until I got money paid back I felt enormously anxious, whether it would be paid back. P.80 there is a message again, 29 October asking for the money to be returned, that credit cards were maxed out. P.81 I got a reply. I felt extremely vexed and frustrated by the reply. They said 'Once the money comes in we will send it back to you' ... Frustrated might be a better word. I must confess, I don't really know what vexed means. It's, I gather, a sentiment for frustration, I felt angry and frustrated but the worst part was the sense of fragmentation that I had, confusion, bewilderment and feeling fragmented and numb, feeling floaty, like I wasn't quite in the moment. Your Honour on p.82 I asked them not to wait and assumed that they had some kind of priority or petty cash arrangement which they could use and referred to that as a special payments procedure on p.82. At p.83 I got a generic kind of letter dated 10 November 2014 saying my account was in credit. That was an insult to me after injury at p.82, the letter I received was back on the 29th which says 'We've made note of your bank account details and your child support case will be monitored on a daily basis for the excess payments. Once funds are received we will refund them to your bank account as a matter of urgency'. What actually happened, I got a generic letter saying 'Your account is incorrect'. At p.84 I asked for that to be paid to me urgently. I felt enormously disrespected that they didn't follow through with their promise.
Q.Which promise. …
A.The one that is at p.81 on the 29th where it said 'Monitored daily for excess payment and they will refund them urgently'. Instead I got a generic letter dated 10 November saying 'Your account is in credit', so then I had to write to them and ask for it on the 11th, the next day I wrote and asked to be paid urgently. P.85 is the transcript of a discussion I had back in October the year before where the department basically indicated to me they wouldn't do exactly what they did do.
Q.So this is in October 2013.
A.Yes your Honour, so this was the beginning of my relationship, the beginning of my relationship with the Child Support Agency. Your Honour, p.85 about line 42, the child support officer, Helen, says 'No, we're not involved in collection' and I did say, your Honour 'Once I get to Eudunda I need to let you guys know' she says 'your income'. But on p.86, your Honour, I referred to my fear of double dipping, that is, I pay child support direct by private collect and then the agency takes the same money out and at line, I referred to that on line 22 on p.86. Your Honour, actually I think that is 9 December. That conversation, that is the last conversation I had with them until 23 October and indeed, with respect, I invite the respondent to let me know if I'm wrong here … But my belief now from looking at the statement of Ms Berry and also these, there are summary notes of these conversations that have been discovered, so looking at the discovered notes and I believe this was 9 December, and on the next - I didn't have any communication until 23 October and this is where I'm informed that by the officer 'It's not a CSA collect case so we won't be collecting unless she calls us up and tells us to. And then you will be contacted and we will discuss that with you before we start doing anything like that'. Referring to them taking money your Honour, without notice. They reassured me, Helen reassured me that simply wouldn't happen. It was a private collect arrangement. I was making regular and I say proper payments and I had no expectation that the Child Support Agency would do such a thing and the explanation in my mind as to how it possibly happened I found extremely stressful with just the ideas flying around how it arose and thinking about that my ex-wife had basically swindled me to receive child support, was a powerful part of it, your Honour. And I refer to that - well, your Honour, I say that that underscores the duty of the respondent to conduct, how they should conduct themselves in not adding fuel to the fire. I've indicated where my address is, that all the entities have my address. I don't know, I've got another picture on page 87, I've got another copy of the mother's registered post where she posted me the dissolution application in the Family Court, I filled it out and sent it back to her as requested. Your Honour, I expanded the postage stamp, so the date is readable on p.87, it is readily seen as 5 June and my telephone number is quite readable on that copy … 5 June 2014, that was posted two days after my ex-wife contacted child support and told them that she didn't have my telephone number or my address. So your Honour, those are the documents in relation to my expectation and my expectation of getting prior notice, the shock that I received. I simply had no expectation that would happen your Honour.    …
Your Honour, the next set of evidence, the documents refer to how, how I was. I understand that a plaintiff is found as the defendant finds him, in terms of his position once the ability is established then the defendant takes the plaintiff, the injured plaintiff as he is. I could be wrong about that your Honour. I refer to now my prior situation your Honour…. At p.89 I have again the parenting plan, the mother proposed this, this was exactly her idea. I typed it up and she dictated it. She was at my home and I typed it up. She gave me four nights a week and two days later she withdrew contact, was extremely distressed and then about a week and-a-half later gave me contact to my son for three nights a week. Your Honour that whole incident was extremely distressing. Your Honour, on p.90 is the expiation notice which I referred to. This expiation notice for a red light traffic light offence was in my ex-wife's car notwithstanding that it was still in my name, it hadn't been transferred your Honour. But it was an offence on 15 November, I was working at Coober Pedy on that day. It occurred on Main North Road Enfield. When I rang my ex-wife she berated me and got angry and basically took no responsibility for that. I don't know who was driving, I assume it was her.
Your Honour, after I rejected my ex-wife's attempt to reconcile on 3 October in 2013, some stage shortly after that in October going on the declarations I have received from the DPP, she reported … Unbeknown to me at the time after the rejected reconciliation my wife reported me to police and … - about seven months later while I was on a school camp police broke into my home at Eudunda and they removed every computer, almost anything that they could find that had data on it. I had a hobby of restoring old computers and they took all of those. P.91 is a receipt from the police of the material they took from my home. I say it once, those allegations were malicious and false and they were dismissed at the Magistrates Court level in April 2015. Until then I was suspended from work. Police broke into my home and took that stuff out of it … that was on the 30th of May 2014. …
Q.When were you charged with anything.
A.Two days later your Honour, on a Saturday, it was … I think the 30th was a Friday, I attended the police station at Holden Hill and was charged then your Honour.
Q.You attended voluntarily.
A. Yes, your Honour. I was locked up for about six hours, DNA swabbed in the mouth and had items of clothes, I had one of those jackets that has a drawstring around it, the police cut that off with a curved knife and they refused bail your Honour and I had to get bail from a magistrate over the police refusal. I was locked up for about six hours your Honour. The next day on a Sunday, I think the 1st of June, I think that was a Sunday, my principal rang me and told me I was suspended from work.
Q.What did they charge you with.
A. Rape your Honour, with the mother as the alleged victim.
Q.You had been separated from her for nearly a year.
A.Over a year, it was almost our anniversary of our separation.
Q.So this allegation just came out of the blue to you, did it.
A.Yes.
Q.Did it relate to some allegation of what occurred prior to the separation, did it.
A.Yes your Honour and prior to marriage even.
Q.So around about what historical time was this allegation referring to.
A.The most recent allegation, the most recent allegation of offending was … about January 2013.
Q.I see, you say those charges were thrown out.
A.They were.
Q.When was that.
A.In April 2015, it took them 18 months.
Q.What happened there, was it just withdrawn or –
A.My lawyer received a letter your Honour from the DPP office saying 'I have examined the video evidence and considered there is no prospect of a conviction'. She didn't say no reasonable prospect your Honour, so I take some salve in saying she said no prospect of a conviction.
Q.So the alleged events were said to be on video.
A.Yes your Honour.
Q.Is that the situation.
A.My lawyer referred the DPP to the location of video files on my computer which the police had in their possession and they took a number of months to view those video files and when they did, that was the response, there was no reasonable prospect of conviction.
Q.So she made some allegations by way of a statement to them.
A.Yes in October your Honour.
Q.Then you through your lawyer referred police to video of the alleged events which exonerated you.
A.Yes.
Q.I just mention to you in passing, Mr Harradine, this court deals in a whole lot of jurisdictions with the E-Crime division of the police and they do take a very long time to analyse things because of the workload, so it wouldn't have been a deliberate delay in terms of that length of time I would have thought.
A.No. On that point, part of the psychological impact of this experience and the child support certainly adding it to it, was a sense of injustice, pervasive sense of injustice that the system is not just. I consider that your Honour as part of my injuries, that the respondent has helped engender me.    ….. The bail conditions were such that I couldn't contact my ex-wife. I had to get them varied to see Shaun. Her son stopped coming over in about I would think March or April 2014. So I sought to have my bail varied so I could see Shaun. My ex-wife agreed with that, didn't oppose that but because bail had been granted by a magistrate it had to go before court so there was a period of about 13 days when I didn't see little Shaun and as soon as I had bail varied I had him for more or less a catch-up contact time of nine days. He wasn't at school and that was able to be arranged. So my ex-wife dropped him off and I had him for nine days. Before that I had a letter from the Teachers Registration Board, that's at p.92. I've lost the second page of that letter but they were involved also in the matter, the Registration Board make it part of their duties to make sure teachers are fit and proper people to be doing the job. They were involved, that's at p.92.[54]   At pp.93 and 94 there's a confirmation of the suspension of duty from work. When the July holidays came up, so I had been - had the bail varied, had contact for nine days to Shaun, when the July school holidays came up I had him for half of those.
Q.That's 2014.
A.Yes, your Honour. Then I handed him back to my ex-wife for her half of the holidays and when I went to get him again, that would be the usual two nights a week - two nights a week, when I went to get him she denied contact. She had broken up with her boyfriend at … Ridleyton, it is just near Croydon somewhere. An Adelaide suburb. ….. and I didn't know where she was. I took Family Court proceedings, that was pretty distressing, the denial of contact. I took Family Court proceedings with Norman Waterhouse. They located her. She was back at Coober Pedy and she was residing with her boss from Coober Pedy that she started seeing in about April 2013, not long after she started working with him.
[54] Of Mr Harradine’s bundle of tendered documents P1.

Then Mr Harradine gave evidence focussing on the effect the Agency’s actions had on him, and his consultation with various medical professionals.
Mr Harradine gave evidence that on discovering money had been taken from his account he had suffered enormous shock, panic, surprise and bewilderment such that he suffered gastric reflux, chest tightness, and a difficulty in keeping food down, variously over the period immediately after he discovered his money had been taken. Mr Harradine gave evidence that he immediately went to the Prospect Medical Centre to make an appointment with his GP, and on that same day at about 8 pm in the evening he contacted his psychologist, Dr Shri Maine and obtained the earliest appointment he could get, namely for the 31^st of October.
Mr Harradine saw his GP Dr De Villiers on 28 October. At the time he attended that appointment he said that he was still feeling a sense of panic, bewilderment, fragmentation and disorientation. Mr Harradine said that Dr Villiers prescribed Somac for his anxiety and his psychological state.
Mr Harradine said that the gastric reflux persisted acutely for 10-12 days, then diminished such that after about 6 weeks it was gone.[55]
[55] T76.
Mr Harradine said that at that time he also had to be in Adelaide to face the criminal charges against him and indicated that, on checking, as he had had to be in town for those purposes anyway, he withdrew his claim for any mileage as the mileage he incurred was accordingly not solely for medical treatment.
Mr Harradine gave evidence that he also consulted Dr Vidanage. He had originally consulted Dr Vidanage for anxiety at the risk of his child being removed from the country. Dr Vidanage had referred him to a psychologist Dr Sri Maine, seeing her for the first time on 21 August. That earlier anxiety had subsided after he had secured Family Court orders on 15 September that his child be returned to the metropolitan area.
To explain his state at the time of the Agency’s actions, Mr Harradine then expanded on the events of August 2014 whereby his child had been taken to Cooper Pedy and his contact with the Family Court. He referred to a further demand for spousal maintenance and referred to his own correspondence with the Teachers’ Union and others reflecting what he said was hypervigilance, reactive and anxious thinking and paranoia. He referred to the disciplinary proceedings being undertaken by the Education Department flowing from the wrongful criminal charges that were still extant at that time.
A letter dated 3 July 2014 from the Teachers Registration Board to Mr Harradine states that the criminal charges against him “raise… serious concerns about your fitness to be a teacher”, and a letter dated 11 August 2014 then suspended him from duty until further notice.[56]
[56] Pages 92-94 of exhibit A1.
Mr Harradine then outlined his pressing financial situation at the time. In addition to the aspects already covered concerning his finances, such as the Family Court proceedings, the costs of travelling long distances to access his child, and the costs of defending his criminal matter, he also mentioned an accident with a hire car and some other worries and matters of concern, and his overall dire financial state. He repeated that the Family Court costs alone had been $25,000. Mr Harradine painted a picture of a person in significant debt and subject to considerable pressure. He referred to documents tendered in his bundle including credit card statements, bills and bank accounts which appeared to fully support his evidence.
Mr Harradine then gave evidence with reference to the agency’s discovered documents. He drew attention the agency’s noted conversation with him on 8 October 2013 whereby the agency discussed and advocated Mr Harradine paying child support privately and referenced a number of other of the agency’s documents indicating a high level of policy support that procedure had within the agency. Mr Harradine observed documentation wherein the Australian Institute of Family Studies had emphasised the importance of the encouragement of private child support payments and the importance of ensuring debts are correct before any actions are taken to recover them. Mr Harradine observed that nowhere in any of the agency’s discovered records is there any indication that his ex-wife had told the department that he had stopped paying privately as had been occurring up until the time of the department’s intervention. Mr Harradine pointed to the agency’s records which indicated that his ex-wife had reported a number of ongoing private payments and revealed no indication from her to the department that arrears were owing nor that they had checked with her about that before taking action to garnishee his wages.[57]
[57] T68.
In relation to his claim for defamation, Mr Harradine pointed to a number of departmental documents indicating that enforcement action is taken where there has been a failure to pay and a refusal to negotiate.[58] He gave evidence that the enforcement action conveyed to his employer that he was a child support defaulter.
[58] T70-71.
Mr Harradine then gave evidence as to costs and late fees he incurred due to the deduction. He cited a telephone account late payment fee of $15, and a bank missed payment charge of $9.[59]
[59] T71-72.
Mr Harradine sought to support his case that the Agency had failed in its duty by tendering the outcomes of the investigation conducted by the Department of Human Services pursuant to The Compensation for Detriment caused by Defective Administration (CDDA) Scheme.[60] That independent investigation had access to the Agency’s records. It noted that that when the Agency’s letters to Mr Harradine’s old address were returned undelivered a clear process involving intensive searches is required (Customer location (Tracing) CS 277-01050000) but in contravention of that requirement nothing at all of that kind (“intensive searches”) was done, nor did they attempt to contact him via his known employer.
[60] P119-114 of Exhibit A1.
It also found that a further required procedure to ensure the debt is correct before taking action (Debt repayment – CS 277-04120000) was also ignored, as there is no evidence that any attempt to check the outstanding figure, or indeed that anything at all was outstanding, occurred. The investigation concluded that in both respects there had been defective administration on the part of the Agency.
Medical evidence
Mr Harradine called Dr Andries De Villiers. He confirmed he had reported by letter dated 2 October 2017 that Mr Harradine had consulted him on 28 October 2014 at the Prospect Medical Centre. He had noted that Mr Harradine was under a lot of pressure and stress, and had symptoms and signs related to gastro oesophageal reflux disease for which he prescribed Pantoprazole, also noting that factors that could exacerbate reflux are anxiety, alcohol and smoking. He accepted that it was ‘more than likely’ that the medical notes indicated that he had prescribed Somac, an anti-reflux medication. In cross examination Dr De Villiers indicated that he had done extra training so that he could undertake some psychiatric work in his practice, in particular Medicare mental health care plans longer than 20 minutes, but did not undertake psychiatric work as a specialist. He indicated that he had not undertaken a psychiatric diagnosis of Mr Harradine, but that one of his colleagues had done so.[61]
[61] T94-99.
Mr Harradine called Dr Sri Maine a psychologist. Whilst not a medical doctor, Dr Maine indicated she held a doctorate in psychology and had been practicing for 19 years as a psychologist.
Dr Maine gave evidence that Mr Harradine was originally referred to her by Dr Vidanage prior to the event in question. It was to do with an adjustment reaction, primarily relating to his then relationship issues. Then on 28 October came a further referral of Mr Harradine with a ‘severe mental disorder’ from Dr Vidanage. Dr Maine then saw Mr Harradine in relation to that referral on 31 October 2014. She noted that Mr Harradine had presented in an obviously distressed and upset state, entering her office without the usual greeting, and she indicated that he was much more distressed than he had been on the two earlier occasions she had seen him.
Dr Maine gave evidence that she agreed with the GP’s original referral that Mr Harradine had been suffering what she described as an adjustment reaction. Dr Maine indicated that her primary focus at the 31 October attendance, upon noting his higher levels of anxiety and distress, was to treat him and calm him down rather than perform a new diagnosis. She gave evidence that there was definitely an ‘adjustment reaction’ in that as at 31 October his adjustment reaction had worsened, but that it was difficult for her now to say whether it became a fully-fledged adjustment disorder. She gave evidence that reflux can be induced by depression and anxiety and so any reflux in that situation could well be because of heightened anxiety or depression.[62]
[62] T 111.
In cross-examination Dr Maine repeated that at the time, she had accepted the diagnosis of the general practitioner and primarily focussed on treatment rather than undertaking her own diagnosis.
Mr Harradine called Dr Arthur Loukas, a psychiatrist. Dr Loukas obtained his specialist psychiatric qualifications in 2002 and since that time has worked both in a private and public capacity as a psychiatrist. A report from Dr Loukas dated 12 December 2017 was tendered.[63]
[63] Exhibit A7
In his report Dr Loukas indicated that he had first seen Mr Harradine for unrelated matters but in the course of those consultations Mr Harradine had told him of the events of 23 October 2014. He set out the history of that complaint and the symptoms that Mr Harradine reported as a result of those events. Dr Loukas noted that Mr Harradine at the time of the events had significant existing stressors and according to his GP was already suffering an adjustment disorder for which he had been prescribed Serapax. Noting his existing state and the additional events of 23 October 2014 including Mr Harradine’s reported feelings of anxiety, distress, nausea and oesophageal reflux with persisting symptoms of poor sleep, poor appetite and poor concentration, Dr Loukas concluded:
From the history given by Mr Harradine and the evidence he has provided by way of his general practitioners notes, as well as his psychologist’s notes I am of the opinion that prior to the events of 23 October 2014 that he suffered from an adjustment disorder with mixed anxiety and depressed mood. Furthermore I felt that the stressors of having his money unexpectedly taken aggravated this condition for a period of time and at least until after he was reimbursed for his money.
Dr Loukas explained that an adjustment disorder occurs when a person is subject to a significant stressor and has a marked emotional reaction, typically with anxiety or depression, that persists not for half an hour or so but for a significant period of time say for a matter of days, and such that it can also impact on their social and occupational functioning.[64]
[64] T 148.
Dr Loukas was taken through the history given by Mr Harradine and the various stressors which had placed him in the vulnerable position he had found himself in on 23 October and re-iterated that the reported impact of the deduction of the money had stressed Mr Harradine to the point where he sought medical treatment and repeated that in Dr Loukas’ view that had aggravated Mr Harradine’s pre-existing adjustment disorder. He agreed with the suggestion put to him by Mr Harradine that it appeared to be the straw that broke the camel’s back, in relation to producing physical symptoms.[65]
[65] T 152
He said it was both common and likely for people with high levels of anxiety to develop nausea and vomit, let alone having gastric reflux.
In cross-examination Dr Loukas agreed that his diagnosis was based on Mr Harradine’s history and subsequent consultations together with the other medical notes and materials that he had reviewed both from the GP and the psychologist.
He agreed he was not treating Mr Harradine as at the date of the events concerned, 23 October 2014. He said he placed equal weight on Mr Harradine’s reported history and the GP and psychologist’s notes.
In cross-examination Dr Loukas added that there were additional factors supporting the diagnosis of an adjustment disorder in particular the contemporaneous prescription of medication for sleep and anxiety, and the presentation of the reported psychological symptoms to the GP.
Dr Loukas repeated that the primary criteria applicable to diagnosing an adjustment disorder is that a person has to be subjected to a stressor and then have a marked emotional response and/or a decline in their social occupational functioning. The symptoms would need to persist for at least a day to constitute the disorder. He observed that the expected symptoms such as, for example, nausea, poor sleep, poor concentration, negative thinking, symptoms of anxiety and not being able to do ordinary daily responsibilities like attending work or having affected social functioning are what he would look for. He added that it is unlikely that as a psychiatrist he would see a patient in that condition as when the patient is suffering those immediate symptoms they would go to their general practitioner, which the general practitioner would initially treat. He confirmed that an adjustment disorder, more particularly as he described it in this case, an adjustment disorder with mixed anxiety and depressed mood, was a recognised psychiatric illness and that GPs were also qualified to diagnose those conditions.[66]
[66] T 157
Dr Loukas agreed in cross-examination that upon the return of Mr Harradine’s money he would expect the aggravation of the condition to dissipate. The time taken for the dissipation would vary, with some people improving quite quickly if their stressors declined rapidly. He indicated it could take two or three days once the stressors declined. Dr Loukas gave evidence that Mr Harradine’s evidence that his reflux was significantly improved in two or three weeks, equating roughly to when he got his money back, was in keeping with the aggravation dissipating in that time frame.[67]
[67] T 158
The Respondent’s case
At the conclusion of Mr Harradine’s case on 13 December 2017 Mr O’Leary, counsel for the Agency foreshadowed an application for an adjournment for Mr Harradine to be referred for medico-legal assessment.
Mr O’Leary opened the Agency’s case,[68] indicating that in relation to negligence it was that the Agency owed no duty of care on the basis of lack of foreseeability per section 33 of the Civil Liability Act, and that the existence of such a duty was not coherent with the discharge of the statutory functions of the Child Support Agency whose duty was primarily toward the benefit of children. Mr O’Leary conceded that an adjustment disorder was a recognised psychiatric illness, but denied that Mr Harradine had suffered an adjustment disorder. Mr O’Leary maintained that there was no breach of any statutory duty, nor any interference with contractual relations such as to constitute a tort. In relation to the defamation claim, Mr O’Leary maintained that the communication to Mr Harradine’s employer was not defamatory and in any event attracted qualified privilege.
[68] T159 et seq.
Mr O’Leary said that the facts were not disputed, in particular that the monies in question were deducted from Mr Harradine’s bank account on 23 October without his prior knowledge, triggered by a 3 June 2014 communication from Mr Harradine’s ex-wife.
Mr O’Leary said that in light of the court’s intimations at various stages that the Agency was at risk of adverse findings and that a failure to call any evidence as to matters in dispute may ground a Jones v Dunkel inference, he would call a witness from the department. The court repeated that Mr Harradine’s allegations and evidence, and indeed it must be said the documentation he had tendered from the Agency’s own records, were to the potential effect that the Agency acted in cavalier, negligent and perhaps wilful disregard of Mr Harradine, his interests and any potential duty to him; which placed the Agency at risk of significant adverse findings and should probably be addressed.[69]
[69] Variously, see for example T167-168.
Mr O’Leary called Sally Berry, tendering a statement by Ms Berry with annexures.[70] Ms Berry is a Commonwealth Public servant employed in the Department of Human Services and the Child Support Program in several roles since 1997. At the time of giving evidence she had been acting national manager for two weeks, in which capacity she said she was “responsible for ACT/NSW, Intensive Collection Services, Divisional Support, Deceased Customers and the Employer Withholding programs within child support. I am also part of the Child Support Smart Centre Executive Team in the Department.”
[70] Exhibit R1.
Ms Berry said in her statement that no one officer had the carriage of the matter and that “Given my seniority within the Department in this particular area, I regard myself as an appropriate deponent to give evidence on behalf of the Department in relation to actions taken to make the decision.” Ms Berry went on to comment on various departmental records attached to her statement.
Ms Berry gave evidence that the Agency used a computer customer management system called CUBA, which system included in relation to the majority of transactions and inquiries that customers made, prompts and questions to support the service officers to ask for all the relevant information and to record the transactions and inquiries onto the system, mostly in real time, with a record being kept of each conversation. Records are held of who the staff were who were involved with each call and item, via their logon identifications.
Notwithstanding that the relevant staff who dealt with Mr Harradine were accordingly readily identifiable, it soon became apparent that Ms Berry had had no involvement at all with Mr Harradine’s matter, nor had she had any supervisory or management responsibility for the staff dealing with Mr Harradine’s matter at the relevant time. The court immediately raised this with the witness and counsel for the Agency:[71]
[71] T173-176.
HIS HONOUR
Q.Can I just ask: were you in charge of the various staff who undertook these transactions that you've described in the statement.
A.The staff are managed geographically and they would have had local leadership. My responsibilities are at the program.
Q.So in 2013 and 2014, were these staff responsible to you.
A.Not directly reporting to me, no.
Q.So why isn't (the person) here who is actually responsible for these decisions. Why are you here.
A.I have a long tenure with Child Support. I know the systems and the legislation, and I have a very broad knowledge of those systems, the policies.
QWhy isn't the person responsible for this decision here.
MR O'LEARY:      With respect, I'm not sure the witness can answer that question.
HIS HONOUR
Q.I'm assuming you can't answer that.
A.That's right.
XN
Q.Can you explain to the court how it is that you have been identified as the person to provide evidence to the court.
A.In my nominal role our legal service area had come to me and asked for interrogations of the system records to be able to support the matter. And I took carriage of doing that.
Q.And the people who record the information from customer inquiries, are they executive level employees.
A.No, they are administrative staff.
Q.And when you say 'administrative staff' what level of employee are you referring to.
A.The majority of them would be APS 3s and 4s.
HIS HONOUR:           Is that right, we are not going to have evidence from anyone who was responsible for these decisions? Is that really the case?
MR O'LEARY:           It is the case. This person here, this deponent has scrutinised the records, has on oath or is about to when I tender the document on oath identify her own review of those records and is capable of speaking to them.
HIS HONOUR:           So no-one who can explain why a particular decision to contact or not contact, no-one who is responsible for failing to pick up that both the applicant and his wife informed the department that he was not living where they were sending him notices, none of those people are going to be attending?
MR O'LEARY:           This witness has reviewed those records and will give evidence to the court in answer to questions put to her as to what actions were taken to identify where the applicant was living and what actions could have been taken.
HIS HONOUR:           In her opinion after the event?
MR O'LEARY:           Well in her role as an executive employee -
HIS HONOUR:           Who was not responsible for any of these decisions.
MR O'LEARY:           With respect, if I could finish my answer. Who has responsibility for what systems are in place and the appropriate steps that need to be put in place prior to making a decision.
HIS HONOUR:           Very well, it's your case. You proceed.

This evidence sat somewhat uncomfortably with Dr Schirripa’s evidence on the previous occasion, earlier noted in these reasons, when Dr Schirripa had described the absence of a global cognitive shutdown as a factor in his basis for concluding that Mr Harradine did not have an adjustment disorder.
Mr Harradine then cross-examined Dr Schirripa about the criteria for diagnosing an adjustment disorder, and, as mentioned, DSM-5. Dr Schirripa gave evidence that the DSM-5 is the authoritative primary diagnostic manual for all psychological and psychiatric disorders. It has been in existence for 60 years and is now in its 5^th edition.[113] Dr Schirripa said that to diagnose the condition in Mr Harradine he would have needed to see “a significantly depressed mood, severe clinically significant anxiety, certainly insomnia can be a symptom, but we’re talking severe insomnia that persists for some time and results in no sleep, and a functional impairment as well, an inability to function.”[114]
[113] T483-484.
[114] T484.
Overall Dr Schirripa accepted that in all the circumstances facing Mr Harradine, the fact of the money coming out of his account was sufficient to have caused the disorder, but saw it as essentially conclusive to his opinion that he did not in fact suffer the disorder that Mr Harradine had been able to respond rationally on the same day to the money having been taken, by calling up the various institutions concerned to establish that the money had been wrongly taken.[115]
[115] T485-487, 507-508.
Assessment of the witnesses
In assessing the witnesses and indeed the evidence overall the court has carefully considered all the evidence, together with the extensive submissions made, and has had full regard to everything tendered and put.
There was only one witness called as to the facts in this matter, Mr Harradine.
The court has closely scrutinised the evidence of Mr Harradine. He gave evidence well, in a well prepared, moderate, careful, clear and respectful way. He was consistent in both courts, and throughout substantial examination and cross examination in both courts. His evidence was consistent with, and substantially supported by, the various records of the Agency that were produced and tendered. Indeed the medico-legal assessment of Mr Harradine by Dr Schrippa assessed Mr Harradine as being open and truthful in his presentation to the Agency’s psychiatrist.
Overall, the court accepts Mr Harradine as a truthful, reliable and accurate witness.
Despite the issues raised, and the contest as to those issues vigorously asserted by counsel for the Agency both before the magistrate and at the review hearing in this court, and despite the allegations by Mr Harradine in evidence and his pled case that the Agency acted in a cavalier, negligent way in disregard of him and his rights, and in exercising their statutory powers acted consciously in contumelious disregard of those rights, none of the Agency officers who made any of the decisions concerning the issue before the court, their supervisors or anyone with responsibility for those officers were called. This occurred despite the agency being given every opportunity to do so, despite being advised by the bench to consider doing so, and even despite being warned of the potential criticism and adverse findings if none of those persons were called. It is clear from the evidence that all those officers were readily identifiable by the Agency via their login codes and the fact that all the Agency’s interactions with Mr Harradine are recorded by those officers on the Agency’s CUBA database system. No acceptable reason was given at any stage as to why the neither the crucial decision making officers, nor anyone with the overall responsibility for Mr Harradine’s matter were called to give evidence.
Ms Berry, who had no direct knowledge of any of the events before the court and no direct or indirect responsibility for them, was however called. She had not investigated anything and gave no indication that she had spoken to anyone involved in the events. She had not closely checked the transcripts and materials attached to her statement as several of them were in the wrong place, duplicated others or did not appear to be as they were described in her statement. It is clear that Ms Berry saw her role in giving evidence as defending the Agency rather than giving an objective assessment of what had occurred per the records. However, with those qualifications, Ms Berry gave evidence in a relatively straightforward way, and the court accepts her as an honest witness. Apart from adding her own gloss to some of the tendered records and some information about procedures, at the end of the day her evidence was of limited utility.
As to the medical evidence, the court accepts that each of the four medical witnesses, doctors De Villiers, Maine, Loukas and Schirripa were qualified and competent to give the evidence that they did. Each of doctors De Villiers, Maine and Loukas were treating medical professionals. Dr Maine was a psychologist. Dr Schirripa saw Mr Harradine on a single occasion for medico-legal psychiatric assessment.
Dr De Villiers was the GP who saw Mr Harradine shortly after the 23 October 2014 events. Whilst his note-taking is plainly very brief on both that and other occasions, the court accepts his evidence as to that consultation.
Dr Sri Maine was Mr Harradine’s treating psychologist at the time of the relevant events. Dr Maine plainly saw her role at the time in terms of accepting the diagnosis in the GP’s referral and concentrating on treatment for that diagnosis. Dr Maine was a careful, considered and straightforward witness whose evidence the court accepts.
Dr Loukas was Mr Harradine’s treating psychiatrist at a time subsequent to the October 2014 events, but also inquired into those events in the course of treating Mr Harradine. Dr Loukas was a careful, considered and straightforward witness who gave evidence well. He was obviously a competent psychiatrist. He had a close knowledge of Mr Harradine as he saw him on a number of occasions over time and had an ongoing therapeutic role. His assessment in relation to the matter before the court, whilst not contemporaneous, was closer to the events than Dr Schirripa’s assessment of Mr Harradine and based on a more comprehensive knowledge of the patient.
Dr Schirripa saw Mr Harradine on a single occasion in early 2018 for medico-legal psychiatric assessment. Dr Schirripa was an intelligent, articulate and discursive witness. He was obviously a competent psychiatrist.
The fundamental disagreement between the two psychiatrists was as to whether Mr Harradine suffered an adjustment disorder as a result of the events of 23 October 2014. Both accepted Mr Harradine’s history of events and his reported symptoms as genuine. Whilst there were some other differences between them, the fundamental difference came down to the degree to which a patient needed to be affected by the stressor event, before an adjustment disorder would be diagnosed.
Each agreed that the disorder is to be diagnostically defined with reference to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, commonly referred to as DSM-5.
The primary adjustment disorder diagnostic criteria set out in DSM-5 of relevance to this matter are A, B and E, which read as follows:
A.    The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B.    These Symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
1. Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
2. Significant impairment in social, occupational, or other important areas of functioning.
E.    Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.
Of particular relevance is that the response to the identified stressor can be “marked distress out of proportion to the severity of the stressor”, and/or “significant functional impairment”. In other words, it does not require both. In other words, marked distress out of proportion to the severity of the stressor is sufficient for the diagnosis, and retention by the patient of some or indeed full functional capacity in the circumstance of the event does not mean that he or she has not suffered the condition.
DSM-5 goes on to articulate the functional criteria in more detail. It specifies that frequently the subjective distress or impairment in functioning associated with an adjustment disorder is manifested as decreased work performance and temporary changes in social relationships. The commentary plainly contemplates that when affected, functional capacity will usually be decreased rather than obliterated, and contemplates that in some cases functional capacity will be unaffected.
Dr Loukas correctly summarised the DSM-5 test, and applied it in a conventional and straightforward way to the evidence he had before him of the events of 23 October 2014. He assessed the detailed history he had from Mr Harradine, together with the contemporaneous evidence available via the notes and observations of Mr Harradine’s GPs and his treating psychologist Dr Maine.
On the other hand, Dr Schirripa whilst correctly citing DSM-5 at the outset of the quoted conclusions in his report, gave inconsistent evidence over the course of his time as to the degree to which he would require functional impairment, or indeed at one point seemingly a ‘global cognitive shutdown’, to diagnose an adjustment disorder. At the end of the day the court was left with the strong impression that absent significant functional impairment, Dr Schirripa was simply not going to accept that an adjustment disorder was present, notwithstanding that DSM-5, the accepted diagnostic standard, plainly contemplates and allows such a diagnosis without significant, or indeed any functional impairment. This approach is not consistent with the recognised diagnostic criteria set out in DSM-5.
Another aspect of some potential concern is that Dr Schirripa seemed to regard the fact of an unexceptional current mental state on examination in March 2018 as relevant to whether Mr Harradine had a two to three week adjustment disorder in October 2014,[116] when it was common ground that if Mr Harradine had an adjustment disorder, it fully resolved in 2014 within about three weeks, consequent upon the refunding of monies by the Agency. Indeed, as indicated in DSM-5 diagnostic criteria for adjustment disorder E, cited above, to be an adjustment disorder it must resolve within 6 months of the termination of the stressor or its consequences. Accordingly a normal current mental state examination three and a half years subsequent to the alleged three week adjustment disorder is entirely irrelevant to whether the adjustment disorder occurred.
[116] See Dr Schirripa’s cited conclusions quoted earlier in these reasons wherein “further, his mental state on examination in my interview with him (in 2018) did not indicate the presence of a psychiatric illness” is treated as relevant to whether he had a brief and wholly resolved adjustment disorder in October 2014.
Further factors in favour of Dr Loukas were that he had an ongoing and more thorough knowledge of Mr Harradine, and that knowledge and his assessment were closer to the events.
At the end of the day, taking everything into account, the court prefers the evidence of Dr Loukas to that of Dr Schirripa.
Factual findings
The court accepts that the events occurred as set out by Mr Harradine in his evidence.
I adopt but do not repeat the earlier summary of Mr Harradine’s personal and work history. In 2013 Mr Harradine was working full time as a school teacher. He was married with a small child, and had taken responsibility for his wife’s child from a former relationship. The family lived in Coober Pedy and Mr Harradine worked at the Coober Pedy School. On 23 May 2013 his wife separated from him, taking the children. He agreed the custody, access and child support arrangements as requested by his wife, and commenced paying full child support directly to her.
By 23 October 2014, in short, Mr Harradine was in the middle of a difficult and highly stressful separation and divorce process. In the course of that process his former spouse had taken their child from where they had been living in Coober Pedy to Adelaide without notice, rendering it significantly more difficult and expensive for him to see the child. As a result Mr Harradine had applied for a job transfer to somewhere near Adelaide to facilitate access, and had been transferred to Eudunda to work at the Eudunda School.
As a part of the separation and divorce process, Mr Harradine’s former spouse initially fabricated then withdrew domestic violence allegations against him, then fabricated rape allegations against him, and as a result he had been arrested and denied police bail before securing bail from a court some hours later. His house had been searched in his absence by police and all his computer equipment was seized. When those computers were analysed by police over a year later, video of the alleged rape entirely exonerated Mr Harradine and all charges were dropped. However in 2014 the fabricated charges still stood. As a consequence of those charges his employer the Education department had commenced an investigation into his fitness to be a teacher and had suspended him from work.
After transferring to Eudunda, moving to Eudunda, and commencing work at the Eudunda School, Mr Harradine’s former wife had then taken his child back up to Coober Pedy without notice and in contravention of Family Court orders. He had received a demand for spousal maintenance. Because of the police charges Mr Harradine was not allowed to contact his former wife directly, and had to spend some $25,000 in legal fees to take the issue to the Family Court and have the child returned to Adelaide. In the course of this, on about 8 October 2014, the former wife through her lawyers agreed that Mr Harradine have sole care of the child and the child was released to him.
As at October 2014 Mr Harradine was under extreme personal and financial stress and pressure. He was facing criminal charges, and was suspended from his employment.
As mentioned, over a year earlier, when they had initially separated, Mr Harradine had agreed access and child support arrangements with his former wife and had been regularly paying her the agreed amount. Notwithstanding all the described events, Mr Harradine continued to regularly pay the full agreed child support by direct deposit to his former wife. This had been communicated to and noted by the Agency in 2013, with their approval. It is clear from tendered and referenced Agency materials that this private payment arrangement is the encouraged and preferred child support course.
In acknowledging these arrangements by letter to Mr Harradine in late 2013, a boiler plate clause had notified Mr Harradine to inform the department of any change in circumstances and contact details. Prior to moving to Eudunda Mr Harradine twice told the Agency that he was moving to Eudunda for the 2014 school year. The Agency at all times had Mr Harradine’s current email address. The agency also had access to any street address Mr Harradine might have through any number of databases including his tax records, employment records and motor vehicle registration.
Without informing Mr Harradine either directly or through her family lawyers, and notwithstanding that child support payments were up to date and continuing to be paid to her by direct deposit, on 3 June 2014 Mr Harradine’s former wife contacted the Agency and asked them to collect child support payments directly. She informed them that he was up to date and making ongoing child support payments to her. In further telephone contact between her and the agency over ensuing weeks, she conveyed to the Agency that regular private payments were continuing to be made every fortnight and were completely up to date. She confirmed to the Agency that Mr Harradine was living in Eudunda and working at the Eudunda School.
For reasons that have never been explained by the Agency, it addressed and sent letters purporting to notify the proposed garnisheeing of his wages to Mr Harradine to obviously defunct post boxes in Coober Pedy and Mintabie, which were returned to sender. In breach of its own (Customer location (Tracing) CS 277-01050000) policy and procedure when the Agency’s letters were returned undelivered requiring ‘intensive searches’ to be made nothing was done, and none of the obvious and easy options to contact Mr Harradine were undertaken. In breach of this policy, the failure to attempt to contact Mr Harradine on the current email address they had for him, nor at the current work address they had for him, nor via the immediate and easy access to his address they had via tax records or any number of other current databases, yet the decision send letters to defunct post office boxes, remains completely unexplained.
For reasons that have also never been explained by the Agency, a further required procedure to ensure the debt is correct before taking action (Debt repayment – CS 277-04120000) was also completely ignored. It is plain from the evidence of Ms Berry as to the records, and the records themselves such as they were, that no attempt whatsoever was made by anyone to check whether any monies were owing before proceeding to garnishee Mr Harradine’s wages. Mr Harradine’s former wife, who had previously told the Agency that private payments had been continuing, was not even contacted.
For reasons that have also never been explained by the Agency, it is plain that someone located Mr Harradine’s Eudunda employment and employer and hence had direct access to Mr Harradine and his address, for the purposes of initiating the process to garnishee his wages, yet even at that point in breach of the two mentioned policies failed to give Mr Harradine notice, and failed to check whether there were any outstanding monies.
Either no thought whatsoever was given to compliance with these policies and consequently whether proper notice had been given to Mr Harradine and whether monies were actually owing by Mr Harradine, or if any thought was given, the inescapable conclusion is that either reckless disregard or deliberate malfeasance was then exhibited towards compliance with those policies, as they were plainly ignored.
It is not possible for this court to definitively determine which of these mental elements motivated the Agency’s failure to comply with these requirements, as the Agency has failed to disclose any records that might throw light on the question, and has failed to call any of the readily identifiable[117] witnesses who were responsible for contact with Mr Harradine, his ex-wife, and the decisions concerned.
[117] Through their login codes.
In accordance with the principles enunciated in the case of Jones v Dunkel,[118] I have carefully considered in accordance with that case and subsequent authorities whether an inference should lie that the uncalled evidence would not have assisted the Agency’s case.
[118] (1959) 101 CLR 298.
In particular, it was plainly within the power of the Agency to call the evidence as according to Ms Berry the relevant officers would be readily identifiable via their login codes, and it would be a simple matter for the Commonwealth to identify which officer had the responsibility for managing the file or managing the relevant officers at the relevant time, only some 3 to 4 years prior to trial. Further, no explanation was proffered as to why they were not called, and indeed Mr O’Leary counsel for the Agency objected when his only witness Ms Berry was asked why the relevant officers were not being called. Ms Berry responded that she did not know why. The absent officer or officers were both entirely in the Agency’s ‘camp’, and plainly integral to the decisions that were taken.

In all the circumstances, the court finds that there has been no explanation for the failure to call the evidence, that it is plainly relevant to the issues, and the evidence plainly sits within the Agency’s ‘camp’ and that absent any rational attempt at an explanation to the contrary the Agency is in a position to call it. In the circumstances the court concludes that a legitimate inference arises that the uncalled evidence would not have assisted the Agency’s case.
Doing the best the court can in the absence of anyone, or any records, that can explain the Agency’s motivation for the actions taken, the court has carefully considered the totality of the evidence in assessing the reasons for its actions. The court has regard to Ms Berry’s evidence as to the Agency’s proprietary management system CUBA which she said maintained a primary record of all relevant contact with the parties to the Child Support matter in question, and which such system required and prompted staff to obtain the relevant information and inferentially follow the required procedures at each step of the way.
The court assesses in that light the failure to follow the required policies and in doing that the failure to take the simplest and most obvious steps to give notice to Mr Harradine and to check that actual arrears were owing, together with the Agency’s actions to ignore filed information as to Mr Harradine’s actual address and contact details, and ignore the plain inference from the file that private payments had been regular and continuing, and that as Mr Harradine had no notice of a change and was hence likely to be continuing to pay, hence it was highly likely that that no monies were owing.
It those circumstances, the court concludes that the decision to proceed to garnishee his wages anyway was at least in reckless disregard of its duty per s 3(1)(a) of the Act to only collect and pay monies that the person is question is liable to pay, its own policies designed to prevent the wrongful garnishing of wages and any interest that Mr Harradine had in that not occurring.
If the Agency has a duty to a person whose wages it proposes to garnishee to (a) give them notice prior to doing so as required by its cited policy to that effect, (b) check that monies are actually owing prior to garnisheeing the wages as required by its cited policy to that effect, (c) exhibit reasonable care in the course of exercising their statutory power or (d) not act in reckless disregard of the interests of the person whose wages are to be taken to not have monies they don’t owe wrongly deducted, then it plainly breached all of those duties.
As at 23 October 2014, Mr Harradine for the reasons discussed earlier, was under considerable personal, emotional, legal and financial pressure. He was in considerable debt, with all his credit cards at their limit and with pressing bills. When he discovered that approximately half his wages had been garnisheed, he suffered a dramatic reaction in the manifestation of marked distress totally out of proportion to the severity of the stressor, as evidenced by all the symptoms he cited including shock, fear, bewilderment and gastrointestinal reflux requiring medical and psychological attendances and the prescription of medication. These reactions were indeed totally out of proportion to the objective stressor, the wrongful deduction of monies by the Child Support Agency which could objectively be presumed to be rectified in the immediate future, as in fact they were.
The court is accordingly satisfied on the basis of the evidence, in particular Dr Loukas’ evidence together with that of Mr Harradine and DSM-5, that Mr Harradine plainly suffered a marked aggravation of his adjustment disorder as a result of the Agency’s actions in deducting the monies in question in the circumstances in question. The aggravated disorder primarily manifested itself in terms of greatly heightened distress rather than any seriously debilitating levels of functional impairment.
The court is satisfied that the aggravation of his condition and this severely heightened distress continued over the ensuing two weeks, whereupon upon the refund of the wrongly deducted funds the distress ameliorated such that by the end of the third week, Mr Harradine returned to his pre-aggravated state.
Issues to be referred to the Full Court
Mr Harradine submits that he is entitled to recover in relation to his established psychiatric injury in three ways. Firstly via the tort of intentional infliction of personal injury, otherwise known as the rule in Wilkinson v Downton.[119] If that claim is not made out then in the alternative he claims in negligence. He also claims in defamation.
[119] [1897] 2 QB 57
The court finds in the particular matter before this court concerning Mr Harradine, that the Agency in garnisheeing Mr Harradine’s wages in circumstances where all agree there was no outstanding liability, acted in reckless disregard of the obligation inherent in the objects of the Child Support (Registration and Collection) Act 1988 (“Collection Act”) per section 3(1)(a) to only act in relation to monies which a parent is legally liable to provide, in reckless disregard of its own policy requiring a series of steps be taken to ensure that a person be given notice of proposed garnisheeing of their wages, in reckless disregard of its own policy requiring it ensure the debt is correct before taking enforcement action, and in reckless disregard of any interest Mr Harradine may have in these obligations and policies being adhered to and in not having his monies taken when in fact no liability existed.
Fundamental to Mr Harradine’s claims are two important legal issues. The first is the applicable scope and principles of the rule in Wilkinson v Downton as they apply to Mr Harradine’s claim. It is relatively settled law that the tort is alive and well, and potentially available in this state.[120] The rule has however been expressed differently in Australian cases over the past three decades. For example, see the different expressions of the elements set out respectively in the New South Wales Supreme Court per Rothman J in Clavel v Savage[121] and per Fagan J in Dickens v State of New South Wales.[122] Those slight differences have potential significance in assessing whether the claim is made out and the Agency should be held liable.
[120] Bunyan v Jordan (1937) 57 CLR 1, Magill v Magill (2006) 226 CLR 551.
[121] [2013] NSWSC 775, at [36].
[122] [2017] NSWSC 1173, at [33].
The second legal issue is perhaps of even more importance. Mr Harradine’s alternative claim in negligence fundamentally depends on whether the Agency in exercising its functions pursuant to the legislation and in acting in the way it did to garnishee Mr Harradine’s wages owed any duty to Mr Harradine. Further, if it did owe a duty, what was the scope and extent of that duty. A number of very significant principles are of potential importance in that assessment. It is plain that a duty of care can potentially arise to a third party in relation to the exercise of a statutory duty, or that in the course of the exercise of that duty, duties may exist concerning a range of people who will be affected by the exercise of that duty. However, no duty of care will be established where it would be inconsistent with the primary duty to be exercised, or with the statutory objectives of the legislation pursuant to which the duty is exercised.
Here, the statutory scheme is primarily designed to support children by ensuring that liabilities for child support are satisfied. On the other hand, central to the statutory process are the persons who are plainly contemplated to be those from whom such payments are to be extracted, and the statute’s objects specifically limit it’s operation to monies that are legally owed by those persons. A further consideration is that the statute provides a process where a person’s property can be forcibly taken from them, but that process plainly operates within a democratic society predicated on a system of private property governed by the rule of law. It is not beyond argument that a statutory process for the taking of private property might impose some kind of duty on those taking the private property to the persons whose property is to be taken. It might be to take reasonable care, it might be to adhere to the specified statutory and procedural safeguards, it might be to not act with reckless disregard to the property rights of persons who are plainly not liable pursuant to the legislation.
Whilst ordinarily this court would have no hesitation in proceeding to determine all these issues, the court is also aware that there is no appeal from this decision, it being a review of a minor civil action, and that these issues are of great significance to both the Agency and others who are or may be affected by the Agency’s actions in the future. Accordingly they are deserving of determination by the Supreme Court who can deliver a binding precedent.
For that reason the court, having determined that the trial miscarried before the magistrate and conducted a full rehearing, and having found the relevant facts as earlier set out, has determined that it is appropriate per Section 38(9) of the Magistrates Court Act (1991) to refer to the Full Court for determination two issues of law, (a) the applicable elements of the rule in Wilkinson v Downton, but perhaps more importantly (b) the scope and extent of the Agency’s duty pursuant to the Collection Act, if any, to persons from whom they garnishee wages.