Lewis Barrett, David Winston Simmons, Robert David Eavestaff Bakewell, Molly Veronica Byrne, William Fseld Nankivell, Robert Phillip Searcy, Anthony Gilbert Summers, Timothy Marcus Clark and FAI General Insurance...
[1994] SASC 4882
•8 December 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), MILLHOUSE(2) and DUGGAN(3) JJ
CWDS
Practice - Appeal against refusal to strike out Statement of Claim on the ground that it disclosed no reasonable cause of action - appeal dismissed.
Corporations - Action against directors of State Bank alleging various breaches of duty in connection with acquisition of the total shareholding in another corporation - consideration of 529 of the State Bank of SouthAustralia Act, 1983 which exempts directors of bank from liability for acts or omissions done or made in good faith and in carrying out the duties of office - discussion as to meaning of "good faith". Held that onus is on appellants (defendants) to prove that they were entitled to the protection of s29. Australian Growth Resources Corporation Pty Ltd (Receivers and Managers Appointed) v Van Reesema and Ors (1988) 13 ACLR 261; Hid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460; Webster v Lampard
(1993) 177 CLR 598 and Vines v Djordjevitch (1955) 91 CLR 512 referred to.
HRNG ADELAIDE, 14 November 1994 #DATE 8:12:1994
Counsel for appellants: Mr M Abbott QC with Mr N Iles
(except as listed below)
Solicitors for appellants: Piper Alderman
(except as listed below)
Counsel for appellant Clark: Mr J Goldberg
Solicitors for appellant Clark: Goldberg and Co
Counsel for appellant FAI: Mr M Maurice QC with
Mr G Muecke and Mr P Bracher
Solicitors for appellant FAI: David De L. Winter
Counsel for respondents: Mr T Gray QC with Mr T Stanley
and Ms M Perry
Solicitors for respondents: Crown Solicitor (SA)
ORDER
Appeals dismissed.
JUDGE1 BOLLEN J In my opinion it is reasonably arguable that the protection given by s29(1) of the State Bank of South Australia Act 1983 does not extend to cases of gross negligence or to cases where there was no real attempt by a director to fulfil the duty of care and diligence imposed on him by his position. For example, the protection given by the section may not extend to a director who acts without dishonesty but as a mere rubber stamp.
2. I think it possible for a director to act without bad faith yet not "in good faith".
3. The question whether protection can be extended is no doubt one of law. The application or not of the possible protection will depend on the facts. I think the whole issue should go to trial. Had it been possible to say as a matter of law that s29(1) must give protection against the consequences even of gross negligence or mere rubber stamping then, of course, no trial would have been necessary. But for the reasons given by Duggan J, with which I respectfully agree, it is not possible so to say.
4. I add that I agree with the reasoning of Duggan J on "onus of proof" in relation to the immunity given by s29(1). The onus is, in my opinion, on the appellants to show that they are entitled to the protection of s29(1). That in itself is sufficient to reject the application to strike out the statement of claim.
5. I would dismiss the appeals.
JUDGE2 MILLHOUSE J The point in the appeal is the meaning of the phrase "in good faith" in s29(1) of the State Bank of South Australia Act:-
"....No liability attaches to a Director or other officer of
the Bank for an act or omission done or made, in good faith,
and in carrying out, or purporting to carry out, the duties
of his office."
2. The phrase "in good faith", in Latin "bona fide", has in cases in the past been given a broad and therefore imprecise meaning: it depends upon the context in which the phrase is used.
3. We were referred to a decision of the Full Federal Court in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 upon which Perry J relied. In that case Gummow, Hill and Drummond JJ had to consider "in good faith" in s582A of the Local Government Act and in s149(6) of the Environmental Planning and Assessment Act of New South Wales. They said (at 468):-
"Good faith' in some contexts identifies an actual state of
mind, irrespective of the quality or character of its
inducing causes; something will be done or omitted in good
faith if the party was honest; albeit careless. See, for
example, Smith v Morrison (1974) 1 WLR 659. (Abstinence
from inquiry which amounts to a wilful shutting of the eyes
may be a circumstance from which dishonesty may be inferred:
Jones v Gordon (1877) 2 App Cas 616 at 625; English and
Scottish Mercantile Investment Co Ltd v Brunton (1892) 2 QB
700 at 707-8; The "Zamora" (No 2) (1921) 1 AC 801 at 803,
812. On the other hand, 'good faith' may require that
exercise of caution and diligence to be expected of an
honest person of ordinary prudence."
4. That is apt and most helpful in deciding the point.
5. As I understand the present case, the root complaint against the first eight defendants, once directors of the State Bank, is that having first resolved by minute of the Board to buy some shares, but only after an independent evaluation of their worth, a few weeks later they resolved to clinch the deal without the independent evaluation. The plaintiffs' allegation (I am greatly abbreviating paragraphs 44 and 45 of the Statement of Claim) is that this was in breach of the appellants' duties, especially under section 15(2) of the Act, and in breach of trust and negligent and reckless. The appellants will point to s29(1) and say they acted in good faith and are not liable.
6. Whether or not the respondents be justified in their complaints that the appellants did not act in good faith will be a matter for the trial judge after he has heard the evidence.
7. It would be quite wrong at this stage to give to the phrase "in good faith" a precise, narrow meaning, certainly not one which meant that the appellants did not have to justify their actions as being "in good faith". The point is most certainly arguable: the action should go to trial. Perry J was quite right in his conclusion on this point.
8. I must disagree, though, with his conclusion that an onus rests on the respondents to prove that the appellants did not act "in good faith". In my view s29(1) gives a defence to a director, (in this case), to shew that he acted in good faith. It is for the Director to prove: the section is a shield. I agree with the reasoning of Duggan J.
9. The appeals should be dismissed.
JUDGE3 DUGGAN J This is an appeal against a refusal by a single judge of this court to strike out the respondents' statement of claim. The ninth appellant also appeals against the learned judge's refusal to strike out paragraphs 44.1 and 44.2 of the statement of claim.
2. The first to seventh appellants were directors of the respondent bank at the time of the events giving rise to the litigation. The eighth appellant was the chief executive officer of the bank. The ninth appellant is the insurer of the director appellants under a policy which indemnifies them against claims arising out of the performance of their duties as directors.
3. The action arises out of the purchase by the bank of the whole of the share capital in Oceanic Capital Corporation Limited. According to the allegations made in the statement of claim the price paid by the bank for the shares exceeded their actual value by approximately $30 million. It is claimed that the true value of the shares would have been ascertained if a satisfactory independent valuation had been obtained prior to the purchase. According to the statement of claim the directors' conduct in relation to this transaction was in breach of various duties owed to the bank. In addition it is claimed that the eight appellant failed to disclose an indirect pecuniary interest in the transaction.
4. The nature of the respondents' case is apparent from the following paragraphs of the statement of claim:
"44. By their resolution of 24 March 1988 referred to in
paragraph 29 hereof, Barrett, Simmons, Bakewell, Byrne,
Nankivell, Searcy Simmons and Marcus Clark, approved the
purchase by the Bank of all the shares in OCCL without:-
44.1 receiving any expert evidence of the value of such
shares;
44.2 receiving advice from any person qualified to value
OCCL as to the value to the Bank as purchaser of the whole
of the share capital of OCCL in or about March 1988;
44.3 ascertaining whether the Bank had obtained a
satisfactory independent valuation of OCCL by consulting
actuaries and accountants in accordance with its resolution
as pleaded in paragraph 26 herein;
44.4 enquiring of senior officers of the Bank whether they
had obtained a satisfactory independent valuation of OCCL by
consulting actuaries and accountants in accordance with its
resolution as pleaded in paragraph 26 herein;
44.5 enquiring of senior officers of the Bank as to the
results of the independent valuation of OCCL by consulting
actuaries and accountants which the Board had by its
resolution of 17 February 1988 referred to in paragraph 26
hereof required as a pre-condition of negotiating the
purchase by the Bank of a 100% interest in OCCL.
45. By reason of the matters pleaded in paragraph 44 hereof
Barrett, Simmons, Bakewell, Byrne, Nankivell, Searcy,
Summers and Marcus Clark in causing the Bank to undertake
the purchase by their resolution of the 24th March 1988
acted:-
45.1 in breach of their respective duties to the Bank and in
the alternative to the Crown as pleaded in paragraph 13
hereof, and in respect of Marcus Clark as pleaded further in
paragraphs 15 and 16 hereof;
45.2 breach of trust as pleaded in paragraph 14 hereof;
45.3 breach of section 15(2) of the Act;
45.4 negligently;
45.5 recklessly."
5. Section 29 of the State Bank of South Australia Act, 1983 is central to the appellants' argument that the whole of the statement of claim should be struck out. It provides as follows:
"29(1) No liability attaches to a Director or other officer
of the Bank for an act or omission done or made, in good
faith, and in carrying out, or purporting to carry out, the
duties of his office.
(2) Any liability that would, but for subsection (1), attach
to a Director or other officer of the Bank shall attach
instead to the Bank."
6. The appellants argue that the section requires the respondents, as part of their case, to prove that the appellants are not entitled to its benefit. In particular it is said that the respondents carry the onus of proving that the appellant directors did not act in good faith. Put another way, say the appellants, the respondents must prove that the appellants acted in bad faith. They then argue that none of the allegations in the statement of claim, if proved, would establish bad faith. It follows, so it is said, that as there is nothing pleaded which would disentitle the appellants to the immunity provided for in s29, then the whole of the statement of claim must be struck out.
7. The learned judge accepted the appellants' assertion that the respondents carried the onus of proving that the appellants were not entitled to the benefit of s29. However he rejected the narrow meaning which the appellants would give to the words "in good faith". He was of the view that:
"... the scope and operation of s29 must be worked out
against the backdrop of the principles applying to the
duties and obligations of directors of a corporation."
8. The learned judge then drew attention to the description of the duties of a director which was provided by King CJ in Australian Growth Resources Corporation Pty Ltd (Receivers and Managers Appointed) v Van Reesema and Ors
(1988) 13 ACLR 261. In that case the learned Chief Justice said:
"The relationship of a director to the company is fiduciary
in character. The primary consequence of this principle is
that a director is bound to exercise the powers and
discretions conferred upon him bona fide in the interests of
and for the benefit of the company as a whole: Richard Brady
Franks Ltd v Price (1937) 58 CLR 112 per Latham CJ at 135.
... The exercise of a fiduciary power for a purpose beyond
the legitimate scope of the power is invalid. ... A
fiduciary is strictly limited by the principles of equity as
to the nature of the dealings in which he may engage a
person to whom he owes a fiduciary duty. ... (270) Mr
Evans argued further that a finding that the actions of the
first respondent in entering into the contract and
instigation the company to do so, were not bona fide for the
benefit of the company, should not be made by an appellate
court in the face of the trial judge's acceptance of his
evidence. It seems to me, however, that acceptance of the
truthfulness of the evidence of the first respondent does
not take the matter very far. It involves acceptance of
the genuineness of the account of his motives which he gave
in evidence. That account exonerates him of any fraudulent
intent. But a fiduciary may be in breach of his fiduciary
duties notwithstanding the subjective honesty of his
motives. This is made clear by the following passage from
the judgment of Viscount Haldane LC in Nocton v Lord
Ashburton (1914) AC 932 at 954: 'But when fraud is referred
to in the wider sense in which the books are full of the
expression, used in Chancery in describing cases which were
within its exclusive jurisdiction, it is a mistake to
suppose that an actual intention to cheat must always be
proved. A man may misconceive the extent of the obligation
which a court of equity imposes on him. His fault is that
he has violated, however innocently because of his
ignorance, an obligation which he must be taken by the court
to have known, and his conduct has in that sense always been
called fraudulent, even in such a case as a technical fraud
on a power. It was thus that the expression "constructive
fraud" came into existence. The trustee who purchases the
trust estate, the solicitor who makes a bargain with his
client that cannot stand, have all for several centuries run
the risk of the word fraudulent being applied to them. What
it really means in this connection is, not moral fraud in
the ordinary sense, but breach of the sort of obligation
which is enforced by a court that from the beginning
regarded itself as a court of conscience.'
It is not to the point that a director genuinely considers
his purposes to be honest if those purposes are not in the
interests of the company. The director must act in a way
which the conceives to be for the benefit of the company as
a whole, as that concept is understood by the law. It may
be accepted, on the learned judge's assessment of the first
respondent as a witness, that the first respondent was
genuine in his account of his purposes in entering into the
transaction and that those purposes were shared by his
co-directors. He may have genuinely believed those purposes
to be proper. In essence, however, those purposes are
reducible to the single purpose of divesting the company of
its business and assets without corresponding benefit to it,
in order to enable the first respondent to take over and
conduct the business. Such a purpose is not within the
scope of what the law regards as the interests of a company
as a whole."
9. As further support for the proposition that good faith entails more than honesty in this context the learned judge placed considerable reliance on the decision of the Full Federal Court in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460. In that case a property developer took action against a local council claiming that it had made negligent misstatements concerning the risk of flooding in a particular area. Statutory provisions exempted the council from liability in respect of advice relating to flooding which was furnished "in good faith". On the facts of that case it was held that the council was not entitled to the protection afforded by these provisions. The court made the following observations on the concept of "good faith" in exclusion clauses of this nature (468):
"Good faith" in some contexts identified an actual state of
mind, irrespective of the quality or character of its
inducing causes; something will be done or omitted in good
faith if the party was honest, albeit careless. See, for
example, Smith v Morrison (1974) 1 WLR 659.
(Abstinence from inquiry which amounts to a wilful
shutting of the eyes may be a circumstance from which
dishonesty may be inferred: Jones v Gordon (1877) 2 App
Cas 616 at 625; English and Scottish Mercantile
Investment Co Ltd v Brunton (1892) 2 QB 700 at 707-8;
The 'Zamora' (No 2) (1921) 1 AC 801 at 803, 812.) On
the other hand, "good faith" may require that exercise of
caution and diligence to be expected of an honest person of
ordinary prudence. This, counsel urged, was what was
required by the present statutory context. The appellant
then submitted that there was a plain absence of good faith
in this sense on the part of the respondent.
In Siano v Helvering 13 F Sup 776 at 780 (1936), Clark J
said that the words 'good faith' or their Latin equivalent
appear frequently in the law and are capable of, and have
received, what he described as 'two divergent meanings'.
The first was the broad or subjective view which defines
them as describing an actual state of mind, irrespective of
its producing causes. The other construed the words
objectively by the introduction of such concepts as an
absence of reasonable caution and diligence. In the
instant case, the court had under consideration a regulation
promulgated by the Commissioner of Internal Revenue which
used the expression 'failure in good faith to observe and
comply with the requirements of all Internal Revenue and
other laws relating to any operations under his permit'.
The appellant asserted that he had never heard of a
particular tax which he had failed to pay. The court said
(at 781): 'The government could and perhaps for the
completeness of the record should have introduced evidence
of the fame (or notoriety, as we said before) of the tax.
Even in the absence of such evidence, we think the permittee
was under a duty to make inquiry. We place that upon two
factors: The nature of taxes, and the lapse of time.
Three years and a tax universal to his trade call, in our
opinion, for some curiosity. No attempt to satisfy that
curiosity smacks to us too much of the ostrich and
proportionately too little of good faith.'
See also Lucas v Dicker (1880) 6 QBD 84 at 88; Re Dalton (a
Bankrupt); Ex parte Herrington and Carmichael (a firm) v
Trustee (1963) Ch 336 at 354-5; Rumsey v R (1984) 5 WWR
585 at 592-3. These cases illustrate that, in a particular
statutory context, a criterion of 'good faith' may go
beyond personal honesty and the absence of malice, and may
require some other quality of the state of mind or knowledge
of the relevant actor. An example in this court is Wilde v
Spratt (1986) 13 FCR 284 at 292; 70 ALR 171, where
s.135(4)(b) of the Bankruptcy Act 1966 (Cth) was in issue;
cf Official Trustee in Bankruptcy v Mitchell (1992) 38 FCR
364 at 371; 110 ALR 484.
The concept of 'good faith' as understood in various fields
of the general law provides further examples. For example,
an administrative decision may involve an improper exercise
of power on the footing that it is unreasonable in the
Wednesbury sense, without there being mala fides.
Likewise, the whole doctrine of constructive notice which
was developed in equity as appendant to the bona fide
purchaser principle, operates by reference to what would
have come to the knowledge of the purchaser if he had
conducted his activities in the ordinary way; see Consul
Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR
373 at 412-13; 5 ALR 231.
In the present case, it will be wrong to assume that when
used in the relevant legislation the phrase 'anything done
or omitted to be done in good faith' (in s582A(1) of the
Local Government Act) and in respect of any advice provided
in good faith' (in s 149(6) of the EPA Act) operate to leave
the respondent liable only in respect of dishonesty.
These provisions, on their face, are designed to strike a
balance between
(i) the interests of the authority which is funded by
public not private funds and which, pursuant to statute,
provides the information, and
(ii) the interests of the recipient of the information
and others reasonably acting upon it where, in the
ordinary course, those persons may be expected to incur
substantial liability on the faith of what is disclosed
by the authority.
Is the individual interest to yield to what might be
called the wider public interest unless the conduct of
the authority may be stigmatised as dishonest? In our
view, the statutes do not bring about that result.
A council is reasonably to be expected to respond to an
application for information of a character of the
obvious significance of that sought here by recourse to
its records. If the council represents that it has done so
('The above information has been taken from the
council's records ...') then it still may have been
acting in 'good faith' if a real attempt has been made,
even though an error was made in the inspection or the
results of the inspection were inaccurately represented
in the certificate which is issued. It is unnecessary
to decide that question on the present appeal.
However, in our view, in the circumstances of the present
case, a party in the position of the respondent cannot
be said to be acting in good faith within the meaning
of the EPA Act and the 1985 Act, if it issues s149
certificates where no real attempt has been made to have
recourse to the vital documentary information available
to the council, and the council has no proper system to
deal with requests for information of the type in
question. Indeed, in the present case, as counsel for the
appellant emphasised, the council officer whose
responsibility it was to deal with the request for
information consciously ignored the very records which
would have supplied it.
The statutory concept of 'good faith' with which the
legislation in this case is concerned calls for more than
honest ineptitude. There must be a real attempt by the
authority to answer the request for information at least by
recourse to the materials available to the authority. In
this case there was a failure to meet that standard."
10. Applying these principles to the case before him the learned judge went on to say:
"It must immediately be accepted that conduct which is no
more than negligent or careless may not, depending on the
circumstances, displace the shield afforded by s29. But
once the conclusion is reached, as in my opinion it must be,
that the words 'good faith' require more than 'honesty' on
the part of the directors or other officers of the bank, it
could not be fatal to a Statement of Claim that it asserts
material facts which fall short of affording a proper basis,
taken at its highest, for a conclusion of dishonesty.
Just what level of dereliction of duty may be necessary
before the shield afforded by s29 is removed is a matter
which can only properly be left to the trial Judge after
hearing the evidence. It is sufficient at this stage to
conclude that while the various allegations of breach of
duty, and in particular those to be found in paragraphs 13,
14, 15, 44, 45 and 46 of the Statement of Claim, even at
their highest, would not afford a proper basis for a finding
of dishonesty, given the construction of s29 which in my
view should be adopted, that is not fatal to the Statement
of Claim.
...
I do not necessarily agree that the label 'gross negligence'
is a label which must be applied where there is an honest
breach of duty unprotected by s29(1). It is inappropriate
to attempt to classify or label situations in which an
honest breach of duty may nonetheless lie outside the
protection given by that section. All that needs to be said
at this stage is that there may be an honest breach of duty
which, in the circumstances of the case, cannot properly be
regarded as a 'act or omission done or made in good faith'."
11. Mr Maurice QC for the ninth appellant and Mr Abbott QC for the director appellants sought to distinguish the role of their clients from that of directors in a public company. Although it was conceded that the appellant directors owed fiduciary duties to the bank, it was pointed out that they were public officers and that they were not subject to the Companies Code. Nevertheless it must be acknowledged that a clear analogy is to be drawn between the director appellants and ordinary directors. The Board is the governing body of the bank and under the legislation then in place it had full power to transact any business of the bank. (s14(1) of the Act.) The bank is bound by anything done by the Board in its administration of the bank's affairs. (s14(2)) A director can be removed for neglect of duty. Of course there are differences and the protection given by s29 is one of them. But in my view the nature of the fiduciary duties of the appellant directors has sufficient in common with the nature of the fiduciary duties of directors of corporations under the Companies Code to render relevant the observations made by King CJ and the Full Federal Court in the cases referred to above.
12. In advancing the opposing and more restricted view as to the scope of 'good faith' Mr Maurice relied heavily on Webster v Lampard (1993) 177 CLR
598. There an action was brought against a police officer claiming damages for wrongfully requiring the plaintiffs to give up possession of certain premises and threatening them with arrest and a charge of trespass. In his defence the police officer relied upon s47A of the Limitation Act, 1935 (WA) which provides:
"no action shall be brought against any person ... for any
act done in pursuance or execution or intended execution of
any Act, or of any public duty or authority."
13. The police officer also relied upon s138 of the Police Act, 1892 (WA) which provides:
"No action shall lie against any ... Officer of Police,
Policeman, (or) Constable ... on account of any act, matter,
or thing done ... in carrying the provisions of (the Police)
Act into effect again(st) any parties offending or suspected
of offending against the same, unless there is direct proof
of corruption or malice."
14. In the joint judgment of Mason CJ, Deane and Dawson JJ their Honours commented on a line of cases in which the courts had been called upon to interpret "course of duty" provisions. They said (605):
"There are many cases in which the courts have been called
upon to consider protective provisions, such as s47A and
s138, which require that the relevant act have a designated
connexion with the course of official duty, such that it be
done in 'pursuance' or 'execution' of some statute or in
'carrying' some statute 'into effect' See, e.g., Hamilton v
Halesworth (1937), 58 CLR 369 at 377; Little v The
Commonwealth (1947), 75 CLR 94 at 108; Trobridge v Hardy
(1955), 94 CLR 147 at 156-8; Marshall v Watson (1972), 124
CLR 640 at 651, or in 'pursuance', 'execution, or
'discharge' of some public duty or office See, e.g. Theobald
v Crichmore (1818), 1 B and Ald 227 at 229 (106 ER 83 at
84); Selmes v Judge (1871), LR 6 QB 724 at 727-8; Newell
v Starkie (1919), 83 JP 113 at 116-7; G. Scammell and
Nephew Ltd. v Hurley (1929) 1 KB 419 at 427; Hamilton v
Halesworth (1937), 58 CLR at 374. Through the judgements in
those cases there runs a 'clear conception of (a person)
intending and trying to do his (or her) duty but labouring
under some misapprehension of fact or of law' Trobridge v
Hardy (1955), 94 CLR at 160. Even in the absence of any
explicit qualifying adjective such as 'intended' (as in s47A
of the Limitation Act) or 'purported', the defence under
such statutory provisions is not confined to the case where
the defendant's conduct was actually justified as being in
pursuance or execution of some statutory provision or
discharge of some public duty or office See, e.g. Greenway v
Hurd 4 TR 553 at 555, per Lord Kenyon CJ (100 ER 1171
at 1172-73) (and other cases referred to in footnote.) If
it were, the protection which such provisions provide to
those acting bona fide in the course of public duty would be
illusory. Subject to an important qualification, it usually
suffices for the purposes of such a provision that the
person invoking the defence genuinely but mistakenly
believed that he or she was acting within the limits of the
authority expressly or impliedly conferred by the relevant
statutory provision or office. The qualification is that,
notwithstanding such a genuine but mistaken belief, the
defence under such protective provisions is not available to
defeat a plaintiff's otherwise well-founded claim if it
appears that the defendant was, in fact, 'actuated solely or
predominantly by a wrong or indirect motive' Trobridge v
Hardy at 162, per Kitto J, as for instance the satisfaction
of personal malice or the gaining of some other benefit or
objective 'entirely outside statutory justification' G.
Scammell and Nephew Ltd. v Hurley at 429, per Scrutton LJ;
and see, generally, Trobridge v Hardy at 175, per Taylor J,
such as a corrupt benefit."
15. Mr Maurice also drew particular attention to these observations of McHugh J (619):
"Statutory provisions, giving immunity from action to
persons discharging public functions, vary in their
language. Nevertheless, the courts have construed such
provisions by reference to general principles rather than by
a textual analysis of individual enactments. Thus, it is a
cardinal rule of construction of such provisions that they
are to be construed as giving protection 'not where the
provisions of the statute have been followed, for then
protection would be unnecessary, but where an illegality has
been committed by a person honestly acting in the supposed
course of the duties or authorities arising from the
enactment' Little v The Commonwealth (1947) 75 CLR 94 at
108. It is also a principle of construction of such
provisions that a defendant who has no intention of
exercising a power for the purpose for which it was
conferred or who has no honest belief in a state of facts
which would have excused the wrongful act is not entitled to
the benefit of a statutory immunity from liability (1947) 75
CLR at 108-112."
16. In Little v The Commonwealth (1947) 75 CLR 94 at 108 Dixon J said:
"Protective provisions requiring notice of action, limiting
the time within which actions may be brought or otherwise
restricting or qualifying rights of action have long been
common in statutes affecting persons or bodies discharging
public duties or exercising authorities or powers of a
public nature. In provisions of this kind it is common to
find such expressions as 'act done in pursuance of this
section' or 'statute,' 'anything done in execution of this
statute' or 'of the powers or authorities' given by a
statute, or 'under and by virtue of' a statutory provision.
Such enactments have always been construed as giving
protection, not where the provisions of the statute have
been followed, for then protection would be unnecessary, but
where an illegality has been committed by a person honestly
acting in the supposed course of the duties or authorities
arising from the enactment. Lord Kenyon CJ said:- 'It has
been frequently observed by the Courts that the notice,
which is directed to be given to justices and other officers
before actions are brought against them, is of no use to
them when they have acted within the strict line of their
duty, and was only required for the purpose of protecting
them in those cases where they intended to act within it,
but by mistake exceeded it.' (Greenway v Hurd (supra): See,
too, Theobald v Crichmore (supra) at 227). 'There can be no
rule more firmly established, than that if parties bona fide
and not absurdly believe that they are acting in pursuance
of Statutes, and according to law, they are entitled to the
special protection which the Legislature intended for them,
although they have done an illegal act.' (Lord Campbell,
speaking for the Privy Council, Spooner v Juddow (1850) 4
Moo Ind App 353 at 379-380 (18 ER 734 at 744)). It
has, however, been found not easy to define the exact
conditions which must be fulfilled to qualify for
protection. Bona fides has been regarded as indispensable.
But the difficulty has been to give such provisions an
operation which, on the one hand, will not be so narrow that
it goes little, if at all, beyond what is authorized by the
substantive parts of the enactment, and, on the other, will
not be wide enough to cover wrongful acts so outside the
scope of the authority given by the statute that it can
hardly be supposed that it was intended to protect those
responsible."
17. It goes without saying, however, that an immunity provision of this nature must be interpreted in accordance with the provisions in the particular Act in which it appears. Although it is true to say that many statutes have followed a broadly similar pattern by providing immunity for acts done in the course of duty, s29(1) speaks of actions or omissions done or made "in good faith and in carrying out, or purporting to carry out, the duties of his office".
18. In my view the requirement to have acted in good faith arises separately from, and in addition to, the requirement that the director was in the course of carrying out his or her duties. Read in this way the passages which I have set out from the cases of Little and Webster are relevant only to the latter aspect. The references in those cases to the defendant acting honestly are in relation to the necessity of honestly intending to act in the course of duty; they cannot be applied without qualification to the additional element in the present case of acting in "good faith".
19. I am not persuaded that in interpreting the meaning and content of the concept of "good faith" in s29 the learned judge erred in concluding that the words required more than "honesty". Of course on an application to strike out a cause of action it is inappropriate to attempt a general definition of words of such wide import. Mr Abbott QC made extensive submissions as to the ambiguity of the description "recklessly" where it was used in para 45 of the statement of claim to describe his client's alleged conduct. But as I understand the respondents' case put at its highest it is that the directors acted recklessly in the sense that they must have realised how foolish their actions were and yet they went ahead nevertheless. In other words they completely abdicated their duty to the bank in connection with this transaction. If that is so then I do not think that the proposition that they did not act in good faith is unarguable. Even if the onus were on the respondent to prove that the appellants were not acting in good faith, I think the learned judge was correct in refusing to strike out the statement of claim.
20. This brings me to the question of onus. The discussion thus far has proceeded on the assumption that the onus is, as the learned judge found, on the respondents to prove that the appellants were not entitled to the protection of s29. If this assumption as to onus is incorrect and the onus is on the appellants to bring themselves within s29, then the case for striking out the statement of claim falls to the ground. The appellants cannot complain of the failure to plead material facts in the statement of claim on this issue if it is not an essential element to establish primary liability.
21. The notice of contention filed by the respondents challenges the learned judge's conclusion that it was for the respondents to prove that the appellants were not entitled to the benefit of s29. His Honour dealt with this issue in the following passage of his judgment:
"Central to the argument that the Statement of Claim should
be struck out on the ground that it fails to disclose a
cause of action, is the contention that the plaintiff has
failed to plead material facts sufficient to surmount the
hurdle posed by s29(1), and in those circumstances the
Statement of Claim should be struck out.
That argument, of course, is available only if s29 in fact
imposes an obligation on the plaintiff to discharge some
onus of proof that the section is not of application, as
opposed to an onus on the defendant to plead it by way of
defence if the defendant sees fit to do so.
Although Mr Quick QC put the argument that the section only
created a ground of defence rather than imposing a
requirement on the plaintiffs, and that the plea which
appears in paragraph 46 of the Statement of Claim must be
regarded as inserted ex abundanti cautela, in my opinion, on
this aspect of their argument, the defendants are correct.
The effect of s29(1) is to extinguish any liability on a
director 'or other officer of the bank' in the circumstances
postulated by the sub-section. In those circumstances, it
is incumbent upon a plaintiff bringing an action against a
director or other officer of the bank to negative the
operation of the sub-section."
22. A convenient starting point for a consideration of the principles upon which the onus of proof is determined in the case of statutory defences of this nature is Vines v Djordjevitch (1955) 91 CLR 512, a case dealing with nominal defendant legislation. The court held that a proviso relating to the giving of notice imposed a condition precedent to the cause of action, thus casting the burden of proof on that issue on the plaintiff. In discussing the distinction between a proviso and an exception the court said (519):
"When an enactment is stating the grounds of some liability
that it is imposing or the conditions giving rise to some
right that it is creating, it is possible that in defining
the elements forming the title to the right or the basis of
the liability the provision may rely upon qualifications
exceptions or provisos and it may employ negative as well as
positive expressions. Yet it may be sufficiently clear that
the whole amounts to a statement of the complete factual
situation which must be found to exist before anybody
obtains a right or incurs a liability under the provision.
In other words it may embody the principle which the
legislature seeks to apply generally. On the other hand it
may be the purpose of the enactment to lay down some
principle of liability which it means to apply generally and
then to provide for some special grounds of excuse,
justification or exculpation depending upon new or
additional facts. In the same way where conditions of
general application giving rise to a right are laid down,
additional facts of a special nature may be made a ground
for defeating or excluding the right. For such a purpose
the use of a proviso is natural. But in whatever form the
enactment is cast, if it expresses an exculpation,
justification, excuse, ground of defeasance or exclusion
which assumes the existence of the general or primary
grounds from which the liability or right arises but denies
the right or liability in a particular case by reason of
additional or special facts, then it is evident that such an
enactment supplies considerations of substance for placing
the burden of proof on the party seeking to rely upon the
additional or special matter: see Morgan v Babcock and
Wilcox Ltd. (1929) 43 CLR 163; Pye v Metropolitan Coal Co.
Ltd (1934) 50 CLR 614; (1936) 55 CLR 138; Darling Island
Stevedoring and Lighterage Co. Ltd v Jacobsen (1945) 70 CLR
635; Barritt v Baker (1948) VLR 491 at 495 and Dowling v
Bowie (1952) 86 CLR 136."
23. Then there is a line of authority dealing with the question of onus of proof where a statute provides immunity to a public officer acting in the course of duty. The cases are discussed in Webster v Lampard (supra).
24. Mason CJ, Deane and Dawson JJ dealt with the issue of onus in their joint judgment as follows (606):
"Where a statutory defence is available in respect of acts
having some such designated connexion with the actual or
intended course of official duty, the general onus of
establishing that connexion will, in the absence of some
identified contrary legislative intention, rest on the
defendant who invokes the defence See, e.g., Rochfort v Rynd
(1881) 8 LR Ir 204 at 209-10; Sayer v Lichfold (1854) 23 LT
324 at 325; Newell v Starkie (1919) 83 JP at 117, per Lord
Finlay; Kyloh v Wilsen (1923) SASR 501 at 504, per Poole J.
Thus, in the present case, the general onus of establishing
that Sergeant Lampard's alleged acts had, for the purposes
of s47A of the Limitation Act, been 'done in pursuance or
execution or intended execution' of the Police Act or of his
public duties or authority as a sergeant in the Western
Australian Police Force rested upon him as the defendant
claiming the benefit of the defence under the section.
Similarly, the general onus of proving that, for the
purposes of his defence under s138 of the Police Act, those
acts had, in the words of par. H as applied by that section,
been 'done ... in carrying the provisions of (the Police)
Act into effect again(st) any parties offending or suspected
of offending against the same' lay upon him. It is true
that there are some statements of authority which,
particularly if taken out of context, can be construed as
supporting a proposition that, for the purpose of statutory
defences such as those involved in the present case, the
general onus of proving that a public official was acting
otherwise then genuinely in the intended discharge of his
duty lies upon the party who asserts it See, e.g. G.
Scammell and Nephew Ltd v Hurley (1929) 1 KB at 429;
Hamilton v Halesworth (1937) 58 CLR at 380. Properly
understood, however, such statements are not authority for
any such broad propositions in relation to onus of proof.
They are related to the 'qualification' referred to in the
preceding paragraph of this judgment and are concerned with
the situation which exists where the prima facie inference
from the conceded or proven facts is that the defendant was
genuinely, albeit mistakenly, purporting or intending to act
in pursuance of statutory authority or duty but it is
alleged by the plaintiff that the defendant was really
actuated 'not ... by an honest desire to do his (or her)
duty' Hamilton v Halesworth (supra) but by some
impermissible purpose or motive. In that situation, the
onus of establishing that the defendant's ostensible pursuit
of public duty was pretended rests only upon the plaintiff
as the party who asserts it. As has been indicated,
however, that stage will not be reached unless and until the
defendant prima facie brings himself or herself within the
words of the relevant statutory requirement."
25. In my view it is consistent with this authority to hold that the grounds for the exclusion of liability by virtue of s29 of the State Bank of SouthAustralia Act must be proved by the party seeking to invoke the defence, in this case the appellants. With respect to the learned judge I am unable to accept his reasoning that the onus is on a plaintiff because the effect of the section is to extinguish the liability of a director. In my view the distinction which must be borne in mind is that referred to in the joint judgment of the High Court in Vines' case. This is not a case in which the grounds of liability are defined so as to include reference to qualifications, exceptions or provisos. In such a case the onus of proof in all such matters would be upon the plaintiff. Instead it is a case in which it is assumed that liability can be established but where the section goes on to provide for "some special grounds of excuse, justification or exculpation depending upon new or additional facts". (91 CLR at 519) As the court made clear in Vines's case the burden of proof is on the party seeking to rely on those special or additional facts.
26. What then are the facts which must be established before a director can rely upon the exemption from liability provided for in s29? First, it must be proved that any act or omission was done in good faith. Secondly there is the requirement that the director was carrying out or purporting to carry out the duties of office.
27. The second requirement is in terms similar to the statutory defences provided for in a number of the authorities referred to above. In those instances in which it is the sole requirement for establishing the defence it is sometimes alleged by the plaintiff that the defendant acted in accordance with some wrong or oblique motive. Such a motive can lead to the exclusion of the defence but, as Webster's case makes clear, "in that situation the onus of establishing that the defendant's ostensible pursuit of public duty was pretended rests only upon the plaintiff as the party who asserts it". (177 CLR at 607) (See also G. Scammell and Nephew Ltd v Hurley (1929) 1 KB 419 at 429). It is in this context that the concept of honesty is referred to in the relevant authorities.
28. The appellants argued that the cases which I have just discussed are authority for placing the onus on the respondents in the present case in relation to the first requirement of the defence under s29, namely, that of acting in good faith. But that argument fails to appreciate the distinction which I have attempted to draw between the two requirements in the section. In my view the appellants must lay the proper factual foundation for the defence to operate. They must prove that they acted in good faith and that they were carrying out or purporting to carry out the duties of office. An onus will be placed on the respondents only if they raise improper motive in relation to the carrying out of the directors' duties and, even then, the onus will not arise "unless and until the defendant (appellants) brings himself or herself within the words of the relevant statutory requirement". (177 CLR at 607).
29. For these reasons I am of the view that the appeals by all appellants should be dismissed.
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