Monie v Commonwealth of Australia - [2007] NSWCA 230

No judgment structure available for this case.

Appeal Outcome: Special leave application refused with costs by the High Court - 16 May 2008

New South Wales

Court of Appeal

CITATION: Monie v Commonwealth of Australia [2007] NSWCA 230
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 & 18 May 2007

JUDGMENT DATE:
3 September 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 2; Campbell JA at 3

DECISION: In substance, appeal allowed, verdict for Peter Monie for $238,750 plus interest; verdict for Jennifer Monie for $50,000 plus interest; new trial for Sam Monie on causation and quantum of damages (if any) excluding economic loss. Further submissions to be made concerning costs.

CATCHWORDS: TORTS – negligence – essentials of action for negligence – duty of care – duty of care owed by Commonwealth Employment Service to prospective employer – where prospective employee referred by Commonwealth Employment Service was ex-offender – where Commonwealth Employment Service aware that prospective employee was ex-offender – where Commonwealth Employment Service failed to inform prospective employer that prospective employee was ex-offender – where employee subsequently shot employer – whether Commonwealth liable for damages suffered by employer - TORTS – negligence – voluntary assumption of risk (volenti not fit injuria) – requirements for finding of voluntary assumption of risk – where employer consented to having an ex-offender work and live on property – whether employer voluntarily consented to risk of being shot by employee - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Osborne v London and North Western Railway Company (1888) 21 QBD 220 - Randwick City Council v Muzic [2006] NSWCA 66, applied - TORTS – negligence – contributory negligence – elements of contributory negligence – causation – where employer failed to adequately interview prospective employee – where employee subsequently shot employer – whether employer’s failure to adequately interview was causative of damages suffered - TORTS – negligence – damages – assessment of general damages – past loss – interest on past loss – future loss – date as at which assessment of damages should occur on appeal - TORTS – negligence – damages – psychiatric illness – whether recognisable psychiatric illness suffered - Tame v New South Wales - Annetts v Australian Stations Pty Limited (2002) 211 CLR 317, followed - TORTS – negligence – damages – economic loss – whether negligent act causative of economic loss sustained by farm business - TORTS – negligence – damages – causation – where damage caused by combination of negligent act and other factors – whether negligent act causative of damage - March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, followed - COURTS AND JUDGES – pleadings – statement of claim – case abandoned – where statement of claim amended – whether part of case abandoned by amendment of statement of claim - COURTS AND JUDGES – witnesses – credit finding – adverse credit finding by trial judge – role of appellate court - APPEALS – where trial judge erred in making adverse credit findings – where adverse credit findings resulted in failure of plaintiff’s case – role of appellate court – need for retrial

LEGISLATION CITED: Motor Accidents Act 1988
Privacy Act 1988 (Cth)
Supreme Court Act 1970
Supreme Court Rules
Uniform Civil Procedure Rules

CASES CITED: Andjelic v Marsland (1996) 186 CLR 20
Baker v Willoughby [1970] AC 467
Brogan v McGeary (1995) Aust Torts Reports 81-342
Coulton v Holcombe (1986) 162 CLR 1
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
GEF Packaging Services Pty Ltd v Turner (Victorian Court of Appeal, 5 September 1995, unreported)
Keighley, Maxsted & Co v Durant [1901] AC 240
Letang v Ottawa Electric Railway Company [1926] AC 725
Manly Council v Byrne [2004] NSWCA 123
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Marsland v Andjelic (1993) 31 NSWLR 162
Meade v Mantrell (NSW Court of Appeal, 27 March 1975, unreported)
Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54
Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25
Monie v Commonwealth of Australia [2003] NSWSC 1141
Monie v Commonwealth of Australia [2006] NSWSC 505
MPB (SA) Proprietary Limited v Gogic (1991) 171 CLR 657
Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101
Nicholson v Nicholson (1995) 20 MVR 186
NSW Insurance Ministerial Corporation (formerly GIO of NSW) v Gomes (No 2) (NSW Court of Appeal, 3 December 1998, unreported)
O’Brien v McKean (1968) 118 CLR 540
Osborne v London and North Western Railway Company (1888) 21 QBD 220
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Randwick City Council v Muzic [2006] NSWCA 66
Richard Martin Tory v Michael Megna [2007] NSWCA 13
Roggenkamp v Bennett (1950) 80 CLR 292
Smith v Baker & Sons [1891] AC 325
Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317
Weiss v The Queen (2005) 224 CLR 300

PARTIES: Peter John Monie - First Appellant
Jennifer Monie - Second Appellant
Samuel Monie - Third Appellant
Commonwealth of Australia - Respondent

FILE NUMBER(S): CA 40375/06

COUNSEL: D F Rofe QC; A J Tudehope - Appellants
R S McIlwaine SC; B J Skinner - Respondent

SOLICITORS: SK & Associates, Armidale - Appellants
Australian Government Solicitor, Sydney - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20043/01

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 13 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Peter John Monie & Others v Commonwealth of Australia [2006] NSWSC 505

HEADNOTE

FACTS

The first appellant is a farmer and grazier in northern New South Wales. In 1993 he sought the assistance of the Inverell office of the Commonwealth Employment Service (“CES”), a Commonwealth government agency, to fill a job vacancy on his family farm. The family farm was operated by a partnership consisting of the first appellant and a family company; the first appellant, second appellant (who is the first appellant’s wife) and third appellant (who is the son of the first and second appellants) were each shareholders in the family company, and resided in a homestead on the farm.

The CES referred Winsor, a person who was interested in the job and who had seen the job advertised at the Inverell office of the CES, to the first appellant for an interview. The first appellant, after first interviewing Winsor in a brief, perfunctory interview, hired Winsor, and invited Winsor and his wife to move into a cottage on the property.

Approximately three months prior to his gaining employment on the farm, Winsor had been released from prison after serving approximately nine-and-a-half months for offences including assault occasioning actual bodily harm. In the period of somewhat less than four years leading up to his release, Winsor had spent one week short of two years in custody. Winsor’s criminal history included forty-one convictions for offences ranging from breaking, entering and stealing, to obtaining benefit by deception.

At the time of referring Winsor to the first appellant for interview, the CES was aware that Winsor was an ex-offender. However, the CES did not seek Winsor’s consent to inform the first appellant about Winsor’s criminal history; nor did the CES reveal Winsor’s criminal history to the first appellant.

Approximately three months after commencing work on the farm, whilst the first appellant was alone in the homestead of his property one evening, Winsor, who was outside the homestead, shot the first appellant four times. The first appellant sustained injuries to his right wrist, face, right shoulder, and left arm. Approximately four months after the shooting, the first appellant suffered a transient ischaemic attack (“TIA”). A second TIA, to which the shooting contributed, followed some 7 years after the shooting, and marked a decline in the first appellant’s condition. Additionally, the first appellant also suffered substantial psychological damage.

The shooting also impacted upon the family farm business. The business had intended to develop and carry on a cattle stud. However, the appellants asserted that the shooting frustrated these plans and most, but not all, of the stud cattle were sold at dispersal sales following the shooting. Additionally, the second appellant suffered psychological damage, and the third appellant claimed damages for nervous shock.

The appellants sued the respondent in negligence, claiming that the respondent had breached a duty not to refer Winsor as suitable for employment or to refer Winsor only after disclosing his criminal history. The trial judge found that the respondent owed the appellants a duty of care, and that the respondent had breached that duty by referring Winsor without informing the appellants of his criminal history. However, the trial judge found that the first appellant had failed to make reasonable enquiries and was negligent, assessing the contributory negligence at half that of the respondent.

Moreover, the trial judge found that Winsor, about two weeks before the shooting, had told the third appellant that he had been in gaol, and that Winsor had probably said that his incarceration was for assault. The trial judge also found that the third appellant relayed this information to the first appellant. On the basis of this finding, the trial judge held that the appellants had voluntarily assumed any risk, consequent upon Winsor’s violent propensity, that Winsor might repeat his violent criminal activity and occasion the appellants loss and damage. Accordingly, the trial judge found that the appellants’ action failed. The trial judge did, however, assess the first and second appellants’ general damages and economic loss, but rejected the third appellant’s claim for damages, finding that he had not suffered a recognisable psychological or psychiatric disorder. The trial judge’s rejection of the third appellant’s claim for general damages was partly based on the trial judge’s finding that the third appellant was not a credible witness.

The appellants appealed against the trial judge’s findings in relation to contributory negligence, voluntary assumption of risk, the first appellant’s quantum of general damages, the economic loss sustained by the partnership, and that the third appellant did not suffer a recognisable psychological or psychiatric disorder. The respondent cross-appealed in relation to the partnership’s economic loss, the finding that the second appellant had suffered psychological damage, the quantum of the second appellant’s general damages, and the finding that the CES knew that Winsor was an ex-offender (and hence that it was liable for the appellants’ losses).

HELD (per Campbell JA; Mason P and Beazley JA agreeing):

1. As to liability:

a. On the evidence, the trial judge was not in error in finding that the CES knew that Winsor was an ex-offender.

b. The CES, having knowledge that Winsor had prior convictions that were relevant to the proposed employment and the circumstances of that employment, owed the appellants a duty of care not to refer Winsor as suitable for interview, or to refer Winsor only after informing the appellants, with Winsor’s consent, of Winsor’s criminal history.

c. Accordingly, the trial judge’s finding that the respondent had breached its duty of care by referring Winsor without disclosing his criminal history, and was therefore liable for the damage thereby suffered by the appellants, was correct.

2. As to voluntary assumption of risk:

a. Voluntary assumption of a risk involves consenting to the particular thing being done which would involve the risk. Smith v Baker & Sons [1891] AC 325, applied.

b. Mere knowledge that a risk exists is not the same as consenting to the risk. Smith v Baker & Sons [1891] AC 325; Letang v Ottawa Electric Railway Company [1926] AC 725, applied

c. Before a defence of voluntary assumption of risk applies, a defendant must establish that the plaintiff perceived the existence of the danger, fully appreciated it, and voluntarily agreed to accept the risk. Osborne v London and North Western Railway Company (1888) 21 QBD 220; Randwick City Council v Muzic [2006] NSWCA 66, applied.

d. The first appellant, having knowledge that Winsor had been in gaol, consented only to having a man who had been in gaol work and live on his property; he did not consent to the risk of being shot.

e. The second appellant, in addition to not knowing that Winsor had been in gaol, did not consent to the risk of suffering psychological damage or financial loss.

f. The third appellant, whilst having knowledge that Winsor had been in gaol, did not voluntarily assume the risk that he might suffer psychological damage as a consequence of the first appellant being shot.

g . Query whether the voluntary assumption of risk by one person would be sufficient to deprive other persons a right to recover damages for psychological damage and financial loss that were consequent upon the damage suffered by the first person.

3. As to contributory negligence:

a. The type of carelessness for a plaintiff’s own interests that is involved in contributory negligence is carelessness concerning the type of risk that in fact was a cause of the particular damage that the plaintiff has sustained.

b. Whilst the first appellant showed some carelessness for his own interests by failing to ask Winsor about his previous work experience and whether he had the skills needed to carry out the particular job that was on offer, the interests concerning which the first appellant showed carelessness were his economic interests.

c. The risk that the first appellant might suffer economic loss through employing an unsuitable employee is a different risk than the risk that the first appellant might be the victim of a gratuitous and unprovoked act of violence of a very serious kind.

d. Accordingly, the careless manner in which the first appellant interviewed Winsor was not a contributing cause of the damage that the first appellant suffered by reason of being shot by Winsor.

e. There was no ratification of the first appellant’s hiring of Winsor by the second and third appellants because:

i. Before there can be a ratification of A’s actions by B, it is necessary for A to have purported, at the time of acting, to be acting on B’s behalf.

ii. The first appellant, at the time of hiring Winsor, was not purporting to act on the second and third respondents’ behalves.
4. As to the re-assessment of damages for personal injury on appeal:

a. The time as at which general damages for personal injury should be assessed on appeal is, prima facie, the date of the award by the appellate court. O’Brien v McKean (1968) 118 CLR 540; Baker v Willoughby [1970] AC 467, cited.

b. Where the statutory maximum amount of damages has increased between the date of trial and the date of the appeal, the appellate court makes a re-assessment of damages by reference to the maximum amount of damages that is current at the date of the appeal. Marsland v Andjelic (1993) 31 NSWLR 162; Nicholson v Nicholson (1995) 20 MVR 186; Brogan v McGeary (1995) Aust Torts Reports ¶81-342; GEF Packaging Services Pty Ltd v Turner (Victorian Court of Appeal, 5 September 1995, unreported), applied.

c. The prima facie principle that the appellate court should assess damages for personal injury as at the date of the award by the appellate court may be inappropriate where the ultimate aim of providing compensation for the extent to which the condition of the plaintiff has been worsened by the tort is better achieved by the appellate court making the assessment as at the date of the trial.

d. The appellate court has the power to backdate the order it makes with respect to damages so that it takes effect from the date of the orders of the trial judge. Nicholson v Nicholson (1995) 20 MVR 186; Brogan v McGeary (1995) Aust Torts Reports ¶81-342; NSW Insurance Ministerial Corporation (formerly GIO of NSW) v Gomes (No 2) (NSW Court of Appeal, 3 December 1998, unreported), applied.

e. If an appellate court re-assesses damages at the date of the appeal but backdates the order to take effect from the date of the trial, careful attention must be given as to how interest will run on that order so as to avoid providing double compensation.

f. Where the appellate court re-assesses only one element of an award of damages, it may be necessary to consider whether interest should run from the date of the award below on those elements that are not re-assessed but from the date of the award in the appellate court on those elements that are re-assessed.
g. In the present case, it is not necessary to backdate the running of interest on any general damages assessed to the date of the order below.

5. As to the quantum of the first appellant’s general damages:

a. The element of the tort of negligence that requires the negligent act to cause damage can be satisfied even if the negligent act is one of a number of conditions that together are sufficient to produce that damage. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, followed.

b. The evidence in the present case supports the conclusion that both of the TIAs that the first appellant suffered were a consequence of: his vascular system being weakened through years of hypertension; the stress he endured at the time of the shooting; and the events subsequent to the shooting.

c. The trial judge was in error in concluding that the first appellant would have suffered the second TIA in any event.

d. The task in assessing general damages is to pick a figure that puts a value on the extent to which the first appellant has had increased pain and suffering and loss of enjoyment of life as a consequence of the shooting, beyond what he was likely to suffer if the shooting had not occurred.

e. The first appellant’s general damages are assessed at $228,750.

6. As to the first and second appellants’ economic loss:

a. The trial judge was not in error in taking the view that it was not more likely than not that the stud venture would have continued at the scale of operations it had at the time of the shooting, if the shooting had not occurred.

b. The trial judge was not in error in assessing the first and second appellants’ economic loss at $20,000.

7. As to the second appellant’s general damages:

a. Damages are recoverable in negligence only for a recognisable psychiatric injury; they are not recoverable for emotional distress, grief, sorrow, anxiety, annoyance, despondency, fright or embarrassment that is not part of a recognisable psychiatric injury. Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317, followed.

b. However, such emotions are compensable when they are part of a recognised psychiatric illness.

c. The trial judge was not in error in preferring the view of two psychiatrists and one psychologist over the view of another psychiatrist and finding that the second appellant had suffered an adjustment disorder.

d. When considering whether the trial judge made an error by awarding damages that were too high, the appropriate time to consider the assessment of damages is as at the time of trial.

e. The trial judge was not in error in assessing the second appellant’s general damages at $40,000 as at the time of the trial.

8. As to the third appellant’s general damages:

a. The reasons that the trial judge gave for being dissatisfied with the third appellant’s credit were unsound and cast doubt on the overall conclusion concerning the third appellant’s credit.

b. Accordingly, the trial judge’s rejection of the third appellant’s claim for damages for psychiatric illness was erroneous.

c. Whilst it would be highly desirable for this Court to reassess the third appellant’s damages itself, it is not in a position to do so because it is not in a position to assess the acceptability of the medical reports on which the third appellant relies.

d. Accordingly, there is no alternative but to have a new trial on the issue of whether the third appellant has suffered any damage that is compensable in tort in consequence of the shooting.

**********

CA 40375/06
SC 20043/01

MASON P
BEAZLEY JA
CAMPBELL JA
3 September 2007

PETER MONIE & Ors v COMMONWEALTH OF AUSTRALIA

Judgment

1 MASON P: I agree with Campbell JA.

2 BEAZLEY JA: I agree with Campbell JA.

3 CAMPBELL JA:

PART A – INTRODUCTION

Nature of the Proceedings

4 Mr Peter Monie (“Peter”) is a farmer and grazier. When he was alone in the homestead on his property on the evening of 15 June 1993 he was shot four times. The assailant was a young man, Mr Darren Winsor (“Winsor”), who had been engaged on 22 March 1993 to work as a station hand on the property. Winsor had come to work there after being referred by the Commonwealth Employment Service (“CES”). Winsor had a criminal history, and had been released from gaol on 14 December 1992. The CES had not told Peter, or anyone in his family, about Winsor’s criminal history. They would not have employed him if they had known.

5 Peter, his wife Mrs Jennifer Monie (“Jennifer”) and his adult son Mr Samuel Monie (“Sam”) each brought proceedings against the Commonwealth, asserting that the circumstances in which Winsor was referred involved negligence on the part of the CES, and that each of them had suffered loss in consequence of that negligence. It has always been common ground that the defendant, the Commonwealth of Australia, is liable for any tort that any officer or officers of the CES might have committed in connection with the CES’s referral of Winsor.

6 There was a long delay in bringing these proceedings on for trial. The plaintiffs moved, in June 2000, for leave to bring this claim out of time. That leave was granted. The plaintiffs’ claim was heard by Dowd J on 24 May 2002, and over the period 3-17 June 2002 inclusive, with judgment being delivered on 4 December 2003: Monie v Commonwealth of Australia [2003] NSWSC 1141. That decision was reversed by the Court of Appeal on 7 April 2005, and a new trial ordered: Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25. The retrial occurred commencing on 31 January 2006 before Barr J, with judgment being given on 13 June 2006: Monie v Commonwealth of Australia [2006] NSWSC 505. Barr J dismissed the plaintiffs’ claim. The present appeal is from the orders made following that retrial.

The Plaintiffs

7 Peter was born on 27 November 1928. Thus, he was aged about 64 years at the time he was shot. Jennifer was born on 23 January 1939, and so was aged 54 at the time Peter was shot. Sam, their eldest son, was born on 28 July 1967, and so was aged 25 at the time of the shooting.

8 PJ Monie & Co Pty Ltd (“the Monie Company”) is a company of which Peter and Jennifer were the directors. Peter, Jennifer and all their children were shareholders in it. Peter and the Monie Company carried on in partnership the business of cattle and sheep grazing at a property called Thornleigh, about 32 kms from Bingara. That business was carried on under the name Thornleigh & Co.

Winsor

9 Winsor was born on 30 December 1970, the son of an Aboriginal mother and a non-Aboriginal father. He regards himself as Aboriginal. His father managed and part-owned a cattle and sheep property in the Tamworth district. He left school at the age of 12, and worked full time on the farm. He could then read and write, but not in running writing. On the farm he learned all the normal duties of a farm labourer. He was not permanently employed, however, and received unemployment benefits from time to time, the first time being when he was 15 years and 9 months of age.

10 By March 1993 he had a total of forty one criminal convictions, the first of them arising from an offence of stealing committed in May 1984, when he was 13½ years old. Of his convictions, two were for breaking, entering and stealing; three were for assault (including one involving assault occasioning actual bodily harm); one was for public mischief; eleven were for other crimes of dishonesty; six were for driving offences; and one involved a breach of a bond. The trial judge summarised his prison sentences by saying, at [20], that he:

“… was in prison for three separate periods, the first running from 26 April to 18 December 1989, the second from 6 June to 27 December 1990 and the third from 2 March to 14 December 1992. During a period of somewhat less than four years he had spent one week short of two years in custody.”

11 Winsor has been tried before a jury and found guilty of the attempted murder of Peter. He was sentenced to serve a period of imprisonment, which had expired by the time of the trial from which this appeal is brought. The trial from which this appeal is brought was conducted on the basis that although the defendant made no admission that Winsor fired the shots that injured Peter, neither was any submission made that Winsor did not cause Peter’s injuries.

The Circumstances of Winsor Coming to Work at Thornleigh

12 The trial judge made the following findings:

“2 Thornleigh & Co used to take on labour from time to time and dealt on occasions with the Inverell office of the CES. In March 1993 further labour was needed and Mr S Monie, on behalf of Thornleigh & Co, spoke about it to an officer of CES. As a result, a labourer, Darren Winsor, went to the property for an interview. He spoke to Mr P Monie. … On 22 or 23 March 1993, having interviewed Mr Winsor, Mr P Monie offered him the job and told him that he and his wife could move into the labourer’s cottage, which was situated a short distance from the homestead. Mr Winsor accepted and it was agreed that he and his wife should move into the cottage on 23 March and that he should start work on 24 March. That is what happened. On 1 April 1993 Mr P Monie and Mr Winsor signed an agreement which recorded, inter alia, the commencement of employment on 24 March.

3 There was in 1993 a scheme called Jobstart, administered by CES, one aim of which was to encourage and assist those who were out of work to get back into work. By the scheme, CES paid to the employer of any eligible worker a subsidy calculated at a particular rate for a nominated period of time. The rate and duration of the subsidy varied according to the history and attributes of each eligible worker.

…

21 Mr Winsor was released from gaol on 14 December 1992. He had previously been registered with CES at Gunnedah as unemployed and knew the names of some of the staff at that office. He went to that office after his release and registered as unemployed. After two or three weeks an officer told him about a job CES had on its books at the Oxford Hotel, Inverell. Mr Winsor was interested and the officer let him use the CES phone to ask for an interview. Mr Winsor went to Inverell, was interviewed and was offered the job. He accepted and started work.

22 Mr Winsor appeared unsure in his evidence whether he had let CES know that he had taken the job. At first he said that he had not and later that he had. I think that the employer, having referred the vacancy to CES, would certainly have informed CES that the job had been filled. I am satisfied that by either or both means CES learned that Mr Winsor was employed at the Oxford Hotel, Inverell. His employer did not apply to CES to subsidise Mr Winsor’s wages. Mr Winsor remained in that job for a continuous period of more than two months until 22 March.

23 Mr Winsor wanted to get back to farm labouring work. On 22 March he went to the office of the CES at Inverell and saw a card in the window. He could read enough of it to learn that it advertised the sort of job he was interested in. His evidence was that he went into the office and spoke to an officer, who read to him the rest of what was on the card. Mr Winsor understood that the job was of a farm or station hand, that experience was necessary, that an immediate start was possible and that to apply he needed to contact somebody called Peter. The officer obtained a file, looked up a telephone index and wrote a name and a telephone number on a piece of paper, which she handed to Mr Winsor. Mr Winsor told the officer his name but she did not write it down. She asked him what experience he had had in farm work and he told her. She did not ask him if he was registered with CES and he did not tell her that he was. He left the office and telephoned Thornleigh & Co. An appointment was arranged.

…

25 Although I doubt some parts of Mr Winsor’s evidence, and am satisfied that in one particular respect he lied, I think that his account of what happened in the office of CES at Inverell, though perhaps incomplete, is probably accurate. His evidence was consistent with earlier accounts he had given and he had no motive to lie about the matter.

26 In due course Mr Winsor was interviewed by Mr P Monie, who offered him the job. Mr Winsor did not say that he had ever returned to or telephoned the office of CES, and I think that he probably did not. There must have been communication between Thornleigh & Co and CES, though evidence is lacking about what information then passed between them. In October 1992 and early in March 1993 the plaintiffs had employed workers referred to them by CES and had successfully applied for Jobstart wage subsidies, so the plaintiffs knew what procedures had to be followed.

…

72 … Even if he had been able to read properly, Mr Winsor could not have arranged an interview without the assistance and co-operation of the officer he spoke to. I am satisfied that by providing Mr Winsor with sufficient information to enable him to telephone Thornleigh & Co for an appointment, and with the expectation that that what he was about to do, the officer referred Mr Winsor to Thornleigh & Co.

…

84 … Mr Winsor took away the paper written by the officer at CES and telephoned Thornleigh & Co. I am satisfied that he spoke to Mrs Sally Barton, the Monies’ daughter, and that she interviewed him in part. I am satisfied that she directed Mr Winsor to attend at a time that she named and that he compiled with that direction.”

The Shooting

13 The trial judge made findings about the circumstances in which the shooting occurred:

“8 …During the evening of 15 June 1993 Mr P Monie was standing in the kitchen of the homestead at Thornleigh when he was shot with a bullet from a .22 rifle, fired from outside the house. The bullet entered his neck and lodged in his mouth, destroying a tooth. Mr P Monie was terrified and in pain. He was alone in the house. He left the kitchen and made for the telephone. He managed to put a call through to friends and asked them for help. He also asked them to inform Mr and Mrs Bull, relatives of his who lived in the district. Then, as he stood in the living room, he was shot three more times through the window. One bullet struck his left arm, another entered his right shoulder and another struck his right wrist.

9 Shortly afterwards, Mr Winsor entered the house, affecting not to know what had happened and offering help. He took Mr P Monie in his vehicle towards Bingara. The friends Mr P Monie had spoken to met them and took Mr P Monie the rest of the way. He was admitted to Bingara Hospital and from there transferred to Tamworth Base Hospital where he underwent surgery.”

14 The window of the kitchen of the house through which Peter was shot on the first occasion faced in a different direction to the window of the living room of the house through which Peter was shot on the second, third and fourth occasions. Thus, his assailant would have had to walk around the corner of the house, and seek Peter out, to be able to fire the second, third and fourth shots.

PART B – LIABILITY

The Basis of the Trial Judge’s Finding of Negligence

15 The trial judge upheld the plaintiffs’ contention that the CES was under a duty not to refer Winsor to Thornleigh & Co as suitable for interview, or else to refer him only after informing Thornleigh & Co, with Winsor’s consent, what it knew about his criminal history.

16 A fundamental part of the reason for holding that that duty existed was that his Honour held that, at the time the CES made the referral on 22 March 1993, it knew that Winsor had spent time in prison. He reached that conclusion by relying upon three separate strands of evidence.

The First Strand – CES Documentation and Practice

17 Payment of a subsidy under the Jobstart scheme depended upon an agreement being entered between the employer and the Commonwealth. There was a standard form for such a Jobstart individual agreement. The body of the form included provisions obliging the employer to provide the employment and certain work experience, for the employer to provide certain reports to the CES, for the Commonwealth to make payment of a subsidy at a particular rate for a particular period, and for the employer to use its best endeavours to provide ongoing employment beyond the Subsidy Period. There was also a schedule that gave various details appropriate to the particular employment to which the agreement related.

18 The standard form of Jobstart individual agreement was entered concerning Winsor’s employment. Some parts of the form were filled out by an unidentified person who the trial judge was satisfied was an officer of the CES. That person filled out Winsor's name and address, and details in the schedule identifying the job as being one of a station hand under the Federal Pastoral Industry Award, and the work as stock work, welding, fencing, tractor driving, horse riding, repairs and maintenance. The schedule was also completed to contain a statement that the rate of pay was $375 per week and the subsidy, payable for 18 weeks from 24 March to 27 July 1993, was $220 per week.

19 In that state, the form was sent to the Monies. Jennifer wrote in Peter's name in the space identifying the employer, and wrote the date 7 April 1993. Peter signed the form, and Jennifer signed as witness and repeated the date.

20 Donna Papworth, a CES Financial Delegate, signed the body of the form on behalf of the CES on 13 April 1993. She signed the schedule on 14 April 1993. A "Checking Officer" also signed the schedule on behalf of the CES.

21 There was no provision on the form for Winsor to sign, and he did not do so.

22 The Schedule in its final form contained a space in which to state the “PASS Program Category”. That space was filled in, in handwriting, with the entry “W13”. The evidence does not disclose whether that entry was on the schedule at the time it went to the Monies. Nothing on the form or schedule gave any indication of what a PASS Program Category was, or what the code “W13” signified.

23 In fact, PASS is an acronym for Program Administration Statistical System. PASS is a computer system that was used to monitor the expenditure by the CES on labour market programs. It was not the only computer program operated by the Department in 1993 – as well there was another computer system known as Job System. It was the Job System program that was used primarily to record the personal details of jobseekers. I infer that the Job System program would be one place where the information about Winsor's convictions would be likely to be recorded, if the CES knew about those convictions at all. That inference is based on the description just given of the Job System program, and the CES’s need to know whether a person was an ex-offender, for the purpose of the CES administering certain of its programs.

24 The trial judge found:

“51 According to a document called PASS Data Guide as at October 1992, Exhibit BC, those qualifying as W13 - Especially Disadvantaged - in the Jobstart program were those jobseekers coded as follows -

11, 14, 19, 21, 22, 26, 41, 44, 50 and 51.

52 According to the PASS coding card as at October 1992, Exhibit BB, placement eligibility codes included these -

11 aboriginal

14 disability

19 youth at risk

21 JET sole parent

22 spouse of a beneficiary

26 older unemployed (55 – 64 yrs)

41 migrant professionals with overseas qualifications

44 ex-offenders

50 DSP recipient

51 SA recipient.”

25 The Gunnedah office of the CES had a record of its transactions with Winsor since his release from prison. At the time, the CES had a computer system that enabled computer records that had been generated in one office to be accessed from another office. The records would include both entries in the PASS computer program, and entries in the Job System computer program.

26 In 1998 the CES was wound down. It closed on 30 April 1998. The first a relevant officer of the Commonwealth knew of any proposed claim by the Monies was in September 1999, when Mr Maurice Rowe became aware that the Monies had filed a summons in the Supreme Court of New South Wales seeking an extension of time in which to commence proceedings. By September 1999 the Job System program did not exist any longer, and Mr Rowe was unable to obtain any of the information that had been contained in it. Searches and enquiries by Mr Rowe failed to locate any documents relating to Winsor, or his placement with the Monies, other than some PASS printouts made on 23 September 1999. Thus, as the trial judge found,

“29 … It seems possible that other forms or records may have been made by CES at that time, stating or explaining at least how the category W13 was arrived at. If there was any such record it did not survive long enough to come into evidence.”

27 Other missing evidence is that neither Ms Papworth nor the Checking Officer were called, or their absence explained.

28 The trial judge found:

“30 Instruction manuals were maintained in the offices of CES in the administration of what was called an Employment Access Program, the intent of which was to assist those who were out of work to obtain and remain in work. [Part of the Program was] Jobstart. CES had office manuals which instructed officers how to deal with applications for the Jobstart allowance.

31 It is apparent from various versions and editions of manuals put into evidence that CES brought up to date and reissued its manuals from time to time. For the most part the following recitation of eligibility criteria is taken from copies of manuals and associated documents published in October 1992 and May and November 1993, though there is no reason to doubt that their provisions applied in March and April 1993. There was no evidence to suggest that the criteria for eligibility of applicants underwent any significant change over that time.”

29 His Honour, at [33], set out passages from the manual that had been published in November 1993:

“Chapter 2 deals, inter alia, with assessing the eligibility of persons seeking employment for entry into programs administered by CES, including Jobstart. The abbreviation EAP is used to denote Employment Access Program. These extracts are relevant -

At p16 –

General eligibility	General EAP eligibility refers to a jobseeker’s overall eligibility for the EAP. It is based on the jobseeker’s: residence status, age, registration as unemployed, and efforts to improve their employment status.
For more information, see Page 18, “General Eligibility”.
Eligibility status	Eligibility status for particular programs refers to: the components of EAP the jobseeker is eligible for, and how long the jobseeker must be unemployed before becoming eligible for certain components.
The eligibility status is based on the eligibility group to which the jobseeker belongs.
For more information, see Page 21, “Eligibility Status”.

At p18 -

Registered as unemployed and seeking improvement in employment status

Jobseekers meet this requirement if they are:

currently registered as unemployed (“UE”),
away from full-time education and training, or
seeking to improve their employment status (eg. Changing from part-time work to full-time work, or casual part-time work to permanent part-time work).

Note: For further information on EAP and jobseekers working part-time, see Page 20, “EAP assistance for job seekers working part-time”.

At p21 -

Eligibility Status

Introduction This topic explains the jobseeker’s eligibility for assistance under the Employment Access Program (EAP). Each jobseeker has an eligibility status, which is determined by membership of an eligibility group.

Eligibility status The eligibility status determines:

the elements of the EAP the jobseeker is eligible for, and

when the jobseeker becomes eligible for assistance.

Eligibility groups The eligibility group a jobseeker belongs to decides their eligibility status. There are three eligibility groups:

general access

‘especially disadvantaged’, and

immediate access.

At p22 -

Eligibility Groups
Introduction	The eligibility group a jobseeker belongs to determines their eligibility status. This topic examines the three eligibility groups.
Eligibility groups	The three eligibility groups are: general access (see page 22), ‘especially disadvantaged’ (see page 23), and immediate access (see page 24).
General access	General access to the EAP is based on a jobseeker’s duration of registration. The number of EAP elements available increases the longer a jobseeker is unemployed. Most program elements set a minimum registration period for access. If a jobseeker has no other form of disadvantage, they will become eligible when this period is reached. The period of registration is the number of weeks or months from registration to program commencement, as recorded by JOBSYSTEM

At p23 -

Especially disadvantaged Jobseekers	Jobseekers who are identified as especially disadvantaged are eligible, after one month’s registration, for those EAP components available in the first twelve months of registration (see page 25, “Eligibility Timing”). Especially disadvantaged jobseekers are: Aboriginal and Torres Strait Islander people (see Page 23, “Aboriginal and Torres Strait Islander people”), jobseekers with disabilities (see Page 23, “Jobseekers with disabilities”), jobseekers aged 50 or older who have been actively seeking employment, homeless people, ex-offenders (see Page 24, “Ex-offenders”), spouses of Newstart Allowance recipients, youth at risk (see Page 24, “Youth at risk”), and migrant professionals with overseas qualifications, who may be eligible for a JOBTRAIN Migrant Bridging course. Note: There is an expanded definition of “Especially Disadvantaged” jobseekers for SkillShare. See Volume 7 Section 2 “SkillShare” for detailed information.
Aboriginal and Torres Strait Islander People	Especially disadvantaged jobseekers include people of Aboriginal and Torres Strait Islander descent who: identify as Aboriginal or Torres Strait Islander people, and are accepted as Aboriginal or Torres Strait Islander people by the community in which they live.
Jobseekers With Disabilities	Jobseekers with disabilities includes jobseekers who: have a physical, intellectual or psychiatric impairment which makes it difficult for them to obtain or keep employment; and who is assessed by the CES as work ready with assistance.

At p24 -

Ex-offenders

Ex-offenders are jobseekers who are rejoining the workforce within 6 months of having been released from:

prison/incarceration after serving a sentence, or
a minimum of 26 weeks on remand.

At p25 -

Eligibility Timing
Introduction	A jobseeker’s eligibility group determines when they become eligible for elements of the Employment Access Program (EAP). This topic examines the timing of eligibility for EAP programs.
Eligibility at registration	The following table shows the elements of EAP that different groups of jobseekers become eligible for at registration
If eligibility is based on…	The jobseeker is eligible for…
general access·	Self Help Job Search Kit Fares Assistance Relocation Assistance Immediate Minor Assistance NEIS (with conditions, see Volume 6 Section 6 “New Enterprise Initiative Scheme”) LEAP
‘especially disadvantaged’	All general access measures and the following: Special Intervention Assessments JOBSTART (for ex-offenders)
Immediate access·	All general access measures and the following: Special Intervention Assessments and Training Job Clubs JOBSTART (basic elements only) JOBTRAIN In addition to the above, DRP clients are eligible for: Work Experience Program for People with Disabilities Post Placement/Training Support for People with Disabilities

At p26 -

Eligibility after 4 weeks registration	After 4 weeks registration, ‘especially disadvantaged’ jobseekers become eligible for: Special Intervention training, Job Clubs, JOBTRAIN Accredited Training for Youth (AYT) JOBSTART, SkillShare. Note: Spouses of JOBSKILLS eligible clients are eligible for JOBSKILLS after 4 weeks registration if aged 21 years or more.
Eligibility after 3 months registration	After 3 months registration, general access jobseekers become eligible for: Special Intervention assessment and training, and Job Clubs.
Eligibility After 6 months registration	After 6 months registration, general access jobseekers become eligible for: JOBTRAIN JOBSTART, and SkillShare.

When eligibility lapses	The following table explains when eligibility for EAP assistance lapses.
If the jobseeker…	The eligibility for EAP lapses when the jobseeker has…
is receiving Job Search Allowance (JSA), or has been registered for less than 12 months	had more than 6 weeks full-time work (subsidised or unsubsidised), or let their registration lapse for longer than 6 weeks due to other reasons
is receiving Newstart Allowance (NSA), or has been registered for 12 months or longer	had more than 13 weeks full-time work (subsidised or unsubsidised), or let their registration lapse for longer than 13 weeks due to other reasons.

At p28 -

Handling lapsed jobseekers

When a jobseeker whose eligibility has lapsed returns for further assistance:

the jobseeker must requalify for assistance under each program component in the usual way,
you must reassess any disadvantaging characteristic (eg does the jobseeker still have status as a JET jobseeker, or can the jobseeker still be considered as an ex-offender?)”

30 Of the categories of “especially disadvantaged jobseekers” to which Winsor might have belonged, the evidence does not show that he fell, strictly, within the category of “Aboriginal and Torres Strait Islander people”. That is because, though he was of Aboriginal descent and identified as Aboriginal, there was no evidence that he was accepted as Aboriginal by the community in which he lived. It is possible, however, because he is shown as such on the PASS printouts that Mr Rowe obtained on 23 September 1999, that he was at one time categorised by the CES as an Aboriginal person. It also appears, from those PASS printouts, that, at least at some time, he was categorised as a “jobseeker with disabilities”. His limited reading ability probably counts as an “intellectual impairment” which would make it “difficult to obtain or keep employment”. There is no direct evidence (apart from the inference that arises from him being categorised as a person with disabilities on the September 1999 PASS printouts) that suggests he had been assessed by the CES as “work ready with assistance”. However, the fact of his having been employed at the Oxford Hotel, and his still having that job on 22 March 1993, provides some ground for concluding that he could well have been assessed as a “jobseeker with disabilities”. He also, clearly, fell within the category of an “especially disadvantaged jobseeker” by reason of being an “ex-offender”.

31 Notwithstanding that Winsor may have been an “especially disadvantaged jobseeker” on three different accounts, the “Eligibility at registration” part of the manual at page 25 shows that, of the various “especially disadvantaged” jobseekers, it is only ex-offenders that are eligible for Jobstart at registration. As appears from the “Eligibility after 4 weeks registration” heading on page 26, especially disadvantaged jobseekers other than ex-offenders are eligible for Jobstart only after four weeks registration.

32 “Registration” means (from the “general eligibility” criteria at page 16) registration as unemployed. However it appears, from page 18, that seeking improvement in employment status suffices. Winsor, in seeking to take up work as a station hand, may well have fulfilled that criterion.

33 From page 27 of the manual, it follows that eligibility for EAP assistance (including Jobstart) lapses if a jobseeker in the lowest category had more than six weeks full time work.

34 His Honour sought to find, by reasoning rather than by explicit evidence, an explanation for how it could have happened that, no later than 13 April 1993, CES officers could have assessed Winsor as someone who qualified, immediately from the date of his employment by Thornleigh & Co, for subsidy under the Jobstart scheme. He reasoned as follows:

“34 The events relevant to Mr Winsor’s eligibility were these -

(i) Mr Winsor was released from custody on 14 December 1992. He registered as unemployed. As an unemployed ex-offender he was classifiable as especially disadvantaged. If there had been an application at the time he would have qualified for immediate inclusion in the Jobstart program.

(ii) About three weeks after his release Mr Winsor started doing the unsubsidised job at the Oxford Hotel.

(iii) Six weeks after the commencement of that job his Jobstart eligibility lapsed. Although one cannot be precise about the date, it was certainly before 22 March 1993.

(iv) Between 7 and 14 April 1993 CES considered Thornleigh & Co’s Jobstart application.

(v) CES then knew, by reference to records made at Gunnedah, that Mr Winsor had registered as unemployed on 14 December 1992 and that he had more than six weeks previously taken up the job at the Oxford Hotel.

(vi) CES assessed Mr Winsor as especially disadvantaged: code W13 and authorised the subsidisation of his wages under the Jobstart program from the day he became employed by Thornleigh & Co, 24 March 1993.

35 Given the CES rules and practice about the lapsing of jobseekers’ eligibility for Jobstart benefits, the judgment that Mr Winsor was eligible for immediate Jobstart subsidy calls for explanation. It was not submitted that Mr Winsor could have fallen into any of the “immediate access” categories of eligibility. It seems to me that CES were bound to take account of the effect of the Oxford Hotel job and to conclude that Mr Winsor’s eligibility had lapsed. The assessor was then obliged to reassess Mr Winsor and decide whether he re-qualified for assistance. According to the manual, an applicant registered for less then twelve months who qualified as especially disadvantaged would have to wait a further four weeks to re-qualify for assistance. The only exception was for ex-offenders, provided they could still be so considered: p28. Mr Winsor could still be so considered because his status as an ex-offender ran for six months and was still current in April 1993. That question would therefore have been answered in his favour.

36 It seems to me that Mr Winsor could not have been assessed as eligible for immediate Jobstart benefits unless the assessor considered him an ex-offender. It follows that when, on or after 7 April 1993, CES assessed Mr Winsor’s eligibility for the Jobstart program it knew that he had, within the last six months, been released from serving a prison sentence.”

The Second Strand – Admissions by CES Officer

35 By July 1993, Peter and Sam had been told by the police about Winsor’s criminal record and “about the police’s opinions of Mr Winsor’s propensities”. Unsurprisingly, they went to the Inverell office of the CES to complain about the CES not having told them. They each gave evidence of having spoken to a woman. The evidence did not enable the trial judge to make a finding about who that woman was. According to Peter, the conversation was:

Peter: “Why weren’t we notified of Darren Winsor’s criminal record?”

The officer: “I know all about his criminal record, Darren’s criminal record.”

Peter: “Why is the Commonwealth entitled to know everything that he did whereas us being private?”

The officer: “We are not obliged to say anything about that.”

36 According to Sam, the conversation was:

Sam: “Anne, how on earth could you have sent somebody to us with a long criminal history?”

The officer: “Sam, unfortunately we were unable to disclose that to you because you are private enterprise whereas if you were a government organisation I could have divulged that to you.”

37 At the time, the Privacy Act 1988 (Cth) bound the Commonwealth: section 4(1).

38 The CES counted as an “agency” within the definition in section 6 Privacy Act. Section 16 obliges an agency not to do an act that breaches an Information Privacy Principle. Section 14 identifies the Information Privacy Principles. One of those principles is Principle 11:

Limits on disclosure of personal information

1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

(a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

(b) the individual concerned has consented to the disclosure;

(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;

(d) the disclosure is required or authorised by or under law; or

(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.”

39 The trial judge took the view that, under Principle 11, it would have been unlawful for any officer of the CES to divulge Winsor’s criminal history to any potential employer unless Winsor first consented. It is not necessary to decide whether that conclusion of law is correct – what matters is that that Principle, together with some departmental practices and instructions to which I will later refer (see para [60] below) provided a basis upon which it is understandable that an officer could have taken the view that the CES was restricted in disclosing Winsor’s criminal history. His Honour held:

“41 It would not have been surprising that Mr P Monie and Mr S Monie should go to CES and complain. It would not have been surprising that whoever they spoke to should know exactly what they were talking about. Everybody in the office must have known about the shooting. It would not be surprising if the officer had a ready answer. Although, for reasons which I shall explain, I am generally reluctant to accept the unsupported evidence of Mr S Monie on controversial matters, I am satisfied that a conversation of that kind took place. What the evidence shows to my mind is that in July 1993 an officer was prepared to make a statement on behalf of CES, apparently having knowledge of the matters she spoke about and authority to say what she said, justifying the silence of CES.

42 The officer was obviously speaking about things CES knew and did not disclose at the time that it considered and approved Thornleigh & Co’s Individual Jobstart Application and organised subsidisation of Mr Winsor’s wages. Such things could be ascertained from the computer records. However, nothing the officer said is any indicator of the state of knowledge of any individual officer in the Inverell office of CES on 22 March 1993.”

40 His Honour, correctly, regarded this second strand of evidence of providing proof that was independent of support for that conclusion provided by the first strand that the CES knew of Winsor’s conviction on 22 March 1993. The CES had that knowledge on 22 March 1993 even though no individual officer in the Inverell office was shown to have had that knowledge on 22 March 1993. That conclusion is consistent with the view that the trial judge took, that information that Winsor was an ex-offender was contained in computer files that were available to Inverell CES officers on 22 March 1993 but which were not checked before Winsor was referred to the Monies for employment.

The Third Strand – Winsor’s Statement to a CES Officer at Gunnedah

41 The third strand of evidence provided a source from which the CES’s knowledge of Winsor’s criminal history could have come. His Honour, at [43], referred to the following cross-examination of Winsor:

42 He concluded:

“44 It seems at least possible that Mr Winsor’s reliance on the silence of the officer he had befriended was misplaced and that CES knew from that source that he had been in prison.”

43 He regarded this third strand as not sufficient in itself to satisfy him that the CES knew about Winsor’s criminal history, but as being supportive of the other evidence.

Evidence Favourable to CES’s Lack of Knowledge

44 His Honour took into account some evidence in favour of the CES not knowing of Winsor’s convictions:

“45 Mr Winsor’s evidence was that he did not tell the officer on 22 March that he had been in gaol. All he told her was his name, his experience and that he was interested in applying for the job. Notwithstanding the caution with which I approach the evidence of Mr Winsor, and I shall explain why later in this judgment, there seems no reason why I should not accept that evidence. He entered the office apparently on the spur of the moment. He had not previously dealt with anybody at that office. He had no reason to speak about his current job or his prior dealings with CES at Gunnedah.”

45 The officer at the Inverell CES who spoke to Winsor on 22 March 1993 has not been identified, beyond Winsor’s evidence that he spoke to a woman. There is no direct evidence that that officer gained access, by online computer or otherwise, to any records generated by the Gunnedah office. There is no direct evidence that she then knew that any office of the CES had a record of Winsor. The trial judge has found that the information that Winsor gave the officer on 22 March 1993 “was insufficient to allow an assessment of his eligibility for entry to the Jobstart programme”. However, there is no finding that immediate eligibility for Jobstart was a characteristic that the Monies required any applicant for the job to have.

46 The trial judge, at [48], made findings about the form in which the CES maintained its computer file concerning Winsor:

“The file was kept in a form that allowed entries to be removed, new entries to be made and details changed from time to time. The result was that once a change was made, the historical record prior to that change was lost. Only the latest version was kept.”

47 The printouts from the PASS system that Mr Rowe made on 23 September 1999 were in evidence in this case. However they contain entries that were made after Winsor was assessed, on or prior to 14 April 1993, as being eligible for payment of Jobstart subsidy from 22 March 1993. On their face, the printouts contain a notation of Winsor’s employment having ceased on 17 June 1993, followed by the comment “DARREN CHARGED WITH ATTEMPTED MURDER OF EMPLOYER”. The last payment of any kind that the printouts record being made relates to a period 16 June 1993 to 13 July 1993. The printouts contain no entry in relation to any job being sought, any job contact being provided, or any payment being made, in relation to any date after 13 July 1993. The printouts do not identify the date of every change to the PASS file. However, they contain a record of having been last changed by someone at the Gunnedah office on 29 February 1996.

48 One printout contains the following entry:

49 His Honour, correctly, explained that entry as follows:

“54 14 December 1992 was the day on which Mr Winsor was released from prison. The commencement date of Mr Winsor’s employment with Thornleigh & Co and the subsidisation of his wages was 24 March 1993. The subsidy was then expected to end on 27 July 1993. Program category W13 corresponded to the category written on Mr Winsor’s Schedule.”

50 His Honour continued:

54 … There is this entry, however, which at first appears inconsistent with my conclusion -

Elig: 14 Characteristics: 11 14 16

55 I am unsure what “Elig: 14” means. Characteristics 11, 14 and 16 denote that the subject is aboriginal, has a disability and has other special needs. Jobseekers with “other special needs” (category 16) would not qualify as especially disadvantaged. Those with characteristics 11 or 14 would. Notably absent from the record is code 44: ex-offenders.

56 Mr Winsor’s status an ex-offender expired on 14 June 1993 and the file itself states that it has been amended since that date. There seems no reason why, at any time after 14 June 1993, the file should not have been amended to delete Mr Winsor’s eligibility as an ex-offender, particularly given the sensitive nature of such information. His aboriginality, his reading disability and his consequent special needs would, of course, have remained relevant and there would have been every reason to retain reference to them on the file.

57 By this reasoning the state of the record on 23 September 1999 is not inconsistent with Mr Winsor’s classification on 22 March 1993 as having placement eligibility code 44: ex-offender.”

The Challenge to the Finding of CES’s Knowledge

51 On this appeal, the Commonwealth challenged the trial judge’s finding that the CES knew, on 22 March 1993, that Winsor was an ex-offender. The basis on which that submission was made is as follows:

“(i) There were no records of the defendant in support of the finding;

(ii) There was no evidence that CES followed the procedure in the manuals or other rules and practice in order to assess Mr Winsor for Jobstart;

(iii) There was no evidence that CES took into account the effect of the Oxford Hotel Job obtained by Mr Winsor;

(iv) There was no evidence that the assessor considered Mr Winsor an ex-offender;

(v) His Honour accepted that whatever was said by an unknown officer following the shooting was not an indicator of the state of knowledge of any individual officer in the Inverell office of CES on 22 March 1993; and

(vi) There was no evidence that as a result of a conversation between Mr Winsor and an employee of CES at Gunnedah any officer in the Inverell office of CES knew on 22 March 1993 that Mr Winsor [was] an ex-offender.”

52 Concerning basis (i), if an organisation is one that maintains records in a systematic manner, and has not destroyed any of the relevant records by the time of trial, absence of records can be a powerful means of proof. However the CES in 1993 was not such an organisation. Its practice of maintaining files in a running form on computer, and making deletions from them from time to time in a way that did not leave any record of the form of the file before amendment, means that absence of records of knowledge that he was an ex-offender is, in the present case, not a particularly powerful consideration. This is particularly so when some of the CES records were destroyed after the CES’s cessation of operations, and when the destroyed records, such as the Job System records, are the very ones where one would expect to find the information recorded, if it had ever been known. And particularly is that so when there was evidence from Winsor, in the course of an interview with senior counsel that the trial judge accepted as being a basis for concluding that Winsor had told Sam about having been in gaol, that:

"Like, when you go in to fill out the dole and that, they give you a questionnaire thing to fill out and it says um, have you been in prison, yes or no, and I always ticked yes and that's why it is so hard to find a job."

53 Concerning basis (ii), the purpose of the manuals relating to assessment of Jobstart is to enable benefits to be provided to those people who are entitled to them, and not provided to those who are not entitled to them. The administration of the Jobstart program involves the expenditure of public money, pursuant to a law that establishes entitlement to the benefits in question. It would be both surprising and disturbing if the benefit scheme was administered other than in accordance with a regular course of procedure, such as that laid down by the manuals. If indeed it were the case that the scheme was sometimes administered otherwise than in accordance with the manuals, that fact would have been within the knowledge of the CES officers. The Commonwealth called no officer of the CES to give any such evidence. In my view the trial judge was justified in acting on the basis that the procedures laid down in the manual had been followed.

54 Concerning basis (iii), I have set out at para [12] above the trial judge’s finding that the officer at the Gunnedah CES let Winsor use the phone to ask for an interview. Winsor’s evidence about how that happened was:

“… the lady behind the desk, she dials the phone number and passes the phone to you. That’s what I mean she was there with me when we rung up”.

55 When a CES officer has provided a job contact, and allowed the CES phone to be used in this fashion to arrange an interview, there would be nothing surprising in the CES wanting to know the outcome of the interview. It had an ongoing interest in whether Winsor obtained employment, because if he obtained employment, its obligations both to continue to pay him unemployment benefits, and to provide other assistance to which an unemployed person in his position was entitled, would cease. As well, effective conduct of its operations would require that it not continue to hold out to other jobseekers that a particular position was available if that position had been filled. The defendant did not tender any record of the dates on which benefits were paid to Winsor, or explain its absence. In these circumstances, I see no error in his Honour’s conclusion that the CES learned that Winsor was employed at the Oxford Hotel. Once it had that knowledge, to actually take it into account in assessing the eligibility of Thornleigh & Co to receive a Jobstart subsidy in connection with employing him, is just one example of the CES following the procedure in its manual for assessment of benefits.

56 Concerning basis (iv), I assume that the “assessor” referred to is the person who assessed Mr Winsor as someone in relation to whom payment under the Jobstart scheme could be made immediately. While there is no direct evidence of the thoughts of Ms Papworth or the unidentified “Checking Officer” on these matters, that is because the defendant did not call them. In the absence of direct evidence, the process of reasoning that his Honour engaged in, set out in the first strand of evidence on which he relied, and supported by each of the second and third strands, is not shown to be in error.

57 Concerning basis (v), the fact that is asserted in this basis is correct. However, what matters for the present case is whether any individual in the Inverell office of the CES on 22 March 1993 knew, or ought to have known, that Winsor was an ex-offender. As his Honour found, at [78], concerning breach of duty:

“The officer who dealt with Mr Winsor failed even to ascertain that he was registered. She failed to ascertain that he was an ex-offender.”

58 That Ms Papworth and the Checking Officer could ascertain it prior to 13 or 14 April 1993 is strong evidence of what was in the CES’s records on 22 March 1993. Further, the second strand of the trial judge’s reasoning gains its force from being an admission in July 1993 relating to what was in the knowledge of the CES, as an institution, and ascertainable from its records at the time of the referral on 22 March 1993, even though no individual officer of the Inverell office had actually ascertained the information at the time.

59 As to basis (vi), for the same reasons as apply concerning basis (v), the actual lack of knowledge of any individual officer of the Inverell office of the CES on 22 March 1993 is, in the circumstances of this case, not to the point.

60 Another matter appropriate to take into account in deciding whether his Honour is in error in having concluded that the CES records as at 22 March 1993 probably included a reference to Winsor’s ex-offender status, is that the CES at relevant times had in force manuals instructing its officers about the procedures to be followed when dealing with ex-offenders. There was some uncertainty in identifying the precise manual that was in force in the period between 14 December 1992 and 22 March 1993. However, a common theme of those manuals that were in evidence was that various details of the sentence or conviction should be recorded, but they could not be disclosed without the jobseeker’s consent, and, even if consent to disclosure was given, there should not be disclosure unless it was relevant to the suitability of the ex-offender for the particular job being applied for. If the view was taken that the conviction was relevant to the job being applied for, but the job applicant refused to consent to it being disclosed, the manual required that the job applicant not be referred for that job.

61 When the CES had these procedures in place for dealing with ex-offenders, it increases the likelihood that, if a CES officer knew that Winsor was an ex-offender, that fact would have been recorded.

62 All the grounds of cross-appeal relating to the question of breach of duty of care depend upon the Commonwealth successfully challenging the finding that the CES knew that Winsor was an ex-offender on 22 March 1993. I am not persuaded that his Honour was in error in making that finding. Thus, these grounds in the cross-appeal fail.

The “Cases Abandoned” Point

63 The case went to trial on the basis of a Further Amended Statement of Claim that was filed on the first day of the hearing. It included the following allegations:

“21. … at all material times the defendant, its servants and agents at the CES, were under a duty of care to the plaintiffs to exercise reasonable skill and care in referring to the plaintiffs persons suitable for employment at Thornleigh.

22. Further and in the alternative the plaintiffs say and the facts are that the defendant, its servants and agents at the CES with actual or constructive knowledge of Winsor’s past criminal record were under a duty of care not to refer Winsor to Thornleigh & Co, if Winsor did not agree to his criminal convictions being revealed to the plaintiffs, those criminal convictions being relevant to the proposed employment and the circumstances of that employment.

A. PARTICULARS OF NEGLIGENCE

(a) Failure to screen or properly screen proposed candidates for employment at Thornleigh in accordance with the criteria given by Samuel to the CES and/or with the nature and location of Thornleigh.

(b) Failure to select or appropriately select for referral an appropriate candidate for employment at Thornleigh.

(c) Failure to assess or properly assess the location and employment environment at Thornleigh when referring Winsor to Thornleigh & Co.

(g) Referring Winsor as a candidate for employment at Thornleigh without disclosing and being able to disclose to the plaintiffs the aforesaid criminal record of Winsor.

(h) Negligently representing either expressly or impliedly the following:

(i) that all due care would be taken to screen and refer only those persons who were suitable for the employment being offered by the employer;

(ii) that the circumstances of the employer, including its location, size and nature would be taken into account when referring persons for employment;

(iii) that only those persons who had been carefully selected as suitable for the employment being offered by the employer, talking into account the location, size and nature of the employment being offered, would be referred to the employer;

(v) that the person referred for employment would not constitute a risk to the business, personal health and safety of those persons with whom he was to work in employment;

knowing and intending that the plaintiffs would rely upon such representations, and the plaintiffs in fact relying on the same.

(i) Failing to advise the plaintiffs that in respect of the character and background of the person referred to them by the CES, they should rely upon their own inquiries.

(j) Failing to have a system or process which from time to time updated details of the job seekers background so as to reveal any criminal convictions had by the job seeker since his/her original registration.

(k) Failing to adhere to and follow the procedure laid down in the ‘Ex-offenders’ part of the 1984 CES Manual when referring Winsor for employment at Thornleigh.

(l) Failing to adhere to and follow the procedure laid down in the May 1993 document ‘Jobseekers who are Ex-Offenders’ when referring Winsor for employment at Thornleigh.

(m) If on the date when Winsor was referred for employment at Thornleigh, the 1984 Manual had been withdrawn and the May 1993 document had not come into operation and effect, failing to have any guidelines setting out procedures to be applied when referring Winsor for employment at Thornleigh and failing to employ the common sense procedures laid down in both or either of the 1984 CES Manual or the May 1993 document.”

64 The Further Amended Statement of Claim deleted allegations that had previously been made in paragraph 21 that the defendant had a duty to exercise reasonable skill and care in selecting and/or recommending to the plaintiffs persons suitable for employment at Thornleigh. It deleted from paragraph 22 an allegation that the defendant had a duty of care to warn the plaintiffs of the material risks associated with employing Winsor at Thornleigh. It also deleted from the particulars of negligence the following allegations:

“(d) Failure to disclose to the plaintiffs that Winsor was a person with a long history of criminal convictions including convictions for acts of dishonesty and of violence to persons.

(e) Failure to warn the plaintiffs that Winsor was a person with a long history of criminal convictions including convictions for acts of dishonesty and of violence to persons.

(f) Failure to warn the plaintiffs that there were material risks associated with employing Winsor at Thornleigh.”

65 Also deleted from the allegations of negligent representation in particular (h) were allegations that there was any representation concerning candidates who would be selected or recommended, and an allegation of a representation:

“(h) (iv) that the person referred and/or recommended for employment would not constitute a risk to the business of the employer;”.

66 Mr McIlwaine SC, for the Commonwealth, submitted that, in light of the cases that the plaintiffs had abandoned by deleting these allegations, it had not been open to the trial judge to find that by referring Mr Winsor to Thornleigh & Co for interview without any disclosure of his criminal record, the defendant was in breach of its duty of care.

67 I do not agree. The case that the plaintiffs were presenting at trial is to be ascertained by reference to the allegations that were contained in the Further Amended Statement of Claim. It is incorrect to argue, as Mr McIlwaine did, that because there had been a deletion of an allegation of negligence by failure to disclose, or failure to warn, it was not open to the plaintiffs to make a case that relied upon the compound allegation that it was negligent to refer Winsor without disclosing and being able to disclose his criminal record. When a deletion is made from a statement of claim, the effect is not to prevent the plaintiff from relying in any way on the matters that have been deleted. Rather, the plaintiff can rely upon the matters that have been deleted only to the extent that those matters remain in the statement of claim after amendment.

Voluntary Assumption of Risk

68 Even though the trial judge found that the CES owed a duty of care to the plaintiffs, and had breached that duty, he entered a verdict for the CES. The basis for that verdict was his Honour’s finding that there had been a voluntary assumption of risk.

69 The factual basis for that conclusion was a finding that, about two weeks before the shooting, Sam had visited Winsor at the cottage where Winsor and his fiancé lived on the property. His Honour found that in the course of that conversation, Winsor told Sam that he had been in gaol, and probably said that it was for assault.

70 While Peter was in Tamworth Base Hospital recovering from his injuries, he was interviewed by two police officers, and signed a statement dated 16 June 1993. Paragraph 11 of it was:

“I yelled out,

‘You’ve got me again in the wrist, Darren. Give us a fair go, I’ve done nothing to upset you.’

At this stage I was absolutely terrified and honestly believed that I was about to die. I have never been so scared in all my life. I can’t explain why I thought it was Darren WINSOR firing at me because the house was lit up and I couldn’t see anyone outside in the darkness. My son Sam informed me about a week ago that WINSOR has spent some time in gaol and this made me feel a little uneasy.”

71 On 25 June 1993 Peter signed a further statement for the police, correcting some details in his earlier statement, but making no change to Paragraph 11.

72 Though Peter and Sam both denied that Sam had told Peter that Winsor had spent time in gaol, the trial judge found that each of those denials was false, and made because each of Peter and Sam believed that the plaintiffs’ case would be damaged if Peter were found to have such information.

73 The appellants contest the finding of voluntary assumption of risk, without challenging the conclusion of the trial judge that Winsor had told Sam he had been in gaol for assault. Rather, they challenge the legal correctness of the process of reasoning by which his Honour arrived at the conclusion that the fact that Sam had been told that Winsor had been in gaol for assault, and that Peter had been told that Winsor had been in gaol, led to a conclusion of voluntary assumption of risk. His Honour’s reasoning process was as follows:

209 That is the totality of the evidence concerning moving the road. In my view, there is nothing in it, as it appears in print, that is detrimental to Sam's credit.

Effect of the Shooting on Sam

210 The trial judge said:

“91 Another example is Mr S Monie’s evidence about the effect of the shooting on himself. His case was that, like his father, he became distrustful of strangers and reluctant to disclose his place of residence. After Mr Winsor was released from gaol at the expiry of his non-parole period, he said, he and his wife installed additional security at their house. When it was pointed out to him that anyone could ascertain his address merely by looking up his name in the telephone directory, he told the Court that he had specifically asked for the number to be unlisted but had not realised until after Mr Winsor’s release that it was in fact listed. I do not accept that explanation.”

211 The fact that one of Sam's telephone numbers was listed in the telephone directory first came into evidence in Sam's evidence in chief:

Sally – we discussed it and said that, you know, that he wouldn’t be able to track down necessarily where we lived because our numbers are silent and so forth, and Sally wanted to double check that so she rang inquiry number on her phone, which I think is 1223 and asked for S Monie and it came up. That was the first we knew about that happening. So, yeah, we set about to try and get that sorted but it’s already been printed in the next book.

212 Two days later, through the whole of which time Sam had been giving evidence, the topic was returned to in his cross-examination:

213 His evidence in chief and his cross-examination were consistent with each other on this topic. The story he tells is not an inherently implausible one. Documents produced on a subpoena by Telstra show that, as at February 2006, Sam subscribed to two separate telephone services. They appear to both be connected to the one address. One of them, which had been subscribed to since 19 April 2004, was not a silent number. The other, which had been subscribed to since 10 January 2005, was a silent number. At the hearing of the appeal, no counsel could provide any suggestion about why it might be sensible for a person to have one silent number, and one non-silent number, connected to the one address.

214 It is, ultimately, a matter for a trial judge whether he or she accepts evidence that is given before him or her, or does not. However, in the present case, no reason for not accepting the evidence was given, and there is nothing in the evidence as it appears in print that suggests a reason why it should be rejected.

Sam's Account of First Hearing of the Shooting

215 I have set out, at para [195] above, the evidence Sam gave about the occasion when his aunt, Marion Bull, telephoned him with news that Peter had been shot. Concerning that evidence, the trial judge said:

“123 Nothing Mrs Bull had said conveyed that any person had shot, let alone intentionally shot, Mr P Monie. Yet Mr S Monie acted in a way that suggests that he knew that someone had intentionally shot Mr P Monie. Instead of going to the hospital, Mr S Monie got his friend to telephone the police at Inverell and ask them to block all the roads out of Thornleigh. He himself telephoned another friend and asked him to watch for cars on the road. He and his friend then left for Bingara. On the way they stopped to allow Mr S Monie to telephone his friend again to ask whether he had seen any suspicious cars. Then they continued onto Bingara, but instead of going to the hospital they went to the police station. It was closed. Only then did Mr S Monie go to Bingara Hospital to try to see his father. By then he had been taken to Tamworth.

124 In my opinion Mr S Monie’s conduct was telling. It does not directly prove that he believed that Mr Winsor had deliberately shot Mr P Monie but it does prove that he believed that somebody had done so and it gives rise to the question why he had that belief. A possible answer is that he believed that Mr Winsor was likely to inflict injury. In that way it supports the conclusion that Mr Winsor told Mr S Monie that he had been in gaol for assault.”

216 It seems to me that Mrs Bull's words to Sam not only conveyed the information that Peter had been shot, but also that, (a) in Peter's view, the situation at Thornleigh was such that Sam should not return there, and (b) Peter, even in the condition he was after having been shot, had been very insistent with Mrs Bull that she give Sam the message that Sam was not to return there. The conversation took place against a background where each of Peter, Mrs Bull and Sam knew that Thornleigh was Sam's home, and the consequence of the message was that in Peter's view Sam, a fit and active man, should not return to his own home to sleep the night. It seems to me that an ordinary inference to draw from that combination of pieces of information is that Peter thought he had been shot deliberately, and that the person who was the source of the danger might still be at Thornleigh. The trial judge was in error in saying that "Nothing Mrs Bull had said conveyed that any person had shot, let alone intentionally shot, Mr P Monie."

Exaggeration to Doctors

217 Para [167] of the trial judge's judgment (which I have set out at para [200]) gives instances where Sam is said to have exaggerated or lied. These instances need to be examined.

218 One of Winsor’s convictions for assault related to a pub brawl, and another related to a kind of ritual farewell that was given by inmates of a gaol to another inmate who was departing, in the course of which the departing prisoner was injured. It does not seem excessive to describe those as "bashings". There is no evidence of any conviction of Winsor for rape or in connection with the mysterious disappearance of someone in Tamworth, but Sam did not tell Dr Roldan that Winsor had been convicted of these matters, just that Winsor had been "in trouble with the law", and "suspected" concerning them. Peter was taken from the Bingara Hospital to the Tamworth Base Hospital on the night of the shooting. That night two police officers from Tamworth came to the hospital and spoke to Jennifer and her daughter Mrs Anabelle Sides. The police officers told them that night about Winsor's convictions. Sam came to the Tamworth Base Hospital the next day and spent several days there, in the course of which he spoke to Tamworth police officers. There was every opportunity for the police officers to give information to Sam about Winsor's past. It is not proved that Winsor had never been in trouble with the law for rapes, or suspected over the mysterious disappearance of someone in Tamworth. It was not put to Sam in cross-examination that the account he gave to Dr Roldan of Winsor’s antecedents was inaccurate.

219 Sam gave evidence in chief about events concerning Winsor's criminal trial, to the following effect. He attended committal proceedings in relation to Winsor in December 1993, after which Winsor was committed for trial at Lismore. That trial was postponed because a forensic witness was killed in a car accident the week before the trial was due to start. The trial was fixed again for October 1995, but the trial was aborted when the Crown prosecutor fell from a 5 m balcony. (On one occasion, when referring to this incident, Sam said the barrister "fell over a 5 m balcony"; on another he said the barrister "got thrown over" the balcony.) At another trial, Winsor dismissed his barrister. That trial was due to recommence in November 1996 at Grafton Court but was postponed due to lack of security. Eventually the trial took place starting in August 1997, at Darlinghurst.

220 It was not put to Sam that this sequence of events was in any way inaccurate. Nor was it put to him that the history he had given to Dr Roldan concerning these events was in any way inaccurate. Dr Roldan records that a history of events concerning the criminal proceedings against Winsor, to similar effect to that given by Sam, had been given to him by both Peter and Jennifer. It was not put to Peter or Jennifer that their accounts of these events were in any way inaccurate. Dr Lee records a history of events given to him by Peter concerning the criminal proceedings against Winsor that is similar to the account given by Sam. Peter was not challenged about this history either. The sequence of events that Sam told Dr Roldan about, concerning the criminal proceedings against Winsor, was thus not shown to be inaccurate.

221 In these circumstances, in my view there was no objective basis that is apparent from the written record for concluding that Sam was exaggerating or lying concerning the events that the trial judge lists in para [167] of his judgment.

Falsely Denying that Winsor told him he had been Sent to Gaol for Assault

222 I have mentioned this evidence earlier, at para [72]. No reason has been shown on this appeal to set aside the trial judge's finding that Sam’s denial that Winsor had told him he had been sent to jail for assault was false, in the sense of factually inaccurate.

223 His Honour went on to find, however, that Sam's denial of the conversation with Winsor was false because he believed that the plaintiffs’ case would be damaged if he were found to have such information. That is a very serious credit finding, amounting to a finding that Sam deliberately gave evidence he knew to be false. Yet no reason is given, independent of the other reasons given concerning Sam's credit, for reaching that view.

Conclusion Concerning Sam's Credit

224 It is inherently highly likely that the impression that Sam made on the trial judge in the witness box was something that the trial judge took into account in ultimately forming the unfavourable view he did of Sam's credit. However when, as well, the trial judge gave numerous other reasons for being dissatisfied with Sam's credit, and those reasons themselves appear either to be unsound, or to be, at bottom, dependent upon not accepting Sam's evidence in some respect and therefore not an independent reason, serious doubt is cast on the overall conclusion concerning Sam's credit. In my view, in these circumstances the conclusion at which the trial judge arrived is not one that should stand.

225 If it were possible for this court to re-assess Sam's damages itself, the previous unfortunate history of this litigation strongly suggests that it would be highly desirable for that course to be followed. However, I do not think that this court is in a position to carry out that re-assessment. It is inevitable that Sam's credit will be a real issue that is intrinsically bound up with the acceptability of the medical reports that have found he is suffering from a psychiatric condition in consequence of the shooting. Being able to decide on the printed record that a credit finding is unsafe to act on is one thing, but carrying out a re-assessment of Sam's damages is another.

226 Part 51 Rule 23 Supreme Court Rules1970 requires that a new trial not be granted because of an error in the court below unless the court is satisfied that some substantial wrong or miscarriage of justice has been thereby occasioned. As explained in Richard Martin Tory v Michael Megna [2007] NSWCA 13 at [28]–[30], in deciding whether the court is so satisfied, the principles on which the proviso is applied in criminal appeals, as explained in Weiss v The Queen (2005) 224 CLR 300, should be applied. Weiss had stated the principles using the procedural langauage appropriate to a criminal trial by judge and jury. Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [23]-[27], stated what those principles are on an appeal from a single judge exercising civil jurisdiction:

“First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. …

Driscoll v R

R v Storey

Morris v R

M v R

Festa v R

Fox v Percy

227 Having examined the evidence relating to the credit finding, I am not satisfied that the decision reached by the trial judge was the correct one. Thus, regretfully, there is no alternative but to have a new trial on the issue of whether Sam has suffered any damage that is compensable in tort in consequence of the shooting.

228 Part way through the trial, Sam sought leave from the trial judge to reinstitute a case that he had suffered economic loss in consequence of the shooting. Sam had at one stage put forward such a case, but had abandoned it prior to the trial commencing. The trial judge refused leave to reinstitute that case. No error has been shown in the trial judge refusing that leave. The new trial should be restricted to a question of whether Sam has suffered any general damage.

Appeal on Costs Questions

229 The appellants’ Notice of Appeal and the respondent’s Notice of Amended Cross-Appeal both challenge certain costs decisions that the trial judge has made. At the hearing of the appeal, counsel for both the appellants and the respondent agreed that the correct outcome concerning those matters could be affected by the decision to which this Court came concerning other matters that are the subject of the appeal. Accordingly, save in one respect, those topics have been left to be the subject of further submissions after publication of these reasons for judgment.

230 That one respect is that the trial judge ordered the appellants to pay the Commonwealth's costs of the retrial on an indemnity basis. That order arose from the appellants having failed before the trial judge, and having fared worse than an offer of settlement that had been made to them by a Calderbank letter. When the outcome of this appeal is that both Peter and Jennifer have succeeded in recovering damages, and the question of whether Sam is entitled to any general damages will need to be re-tried, a necessary part of the basis for the trial judge’s order has fallen away. Thus, it is appropriate to set aside his order concerning the costs of the retrial, while leaving open at present what order or orders, if any, should replace it.

Orders

231 At this stage, the orders that I propose are:

1. Set aside the verdict and judgment in favour of the Respondent.

2. Set aside the order for costs made on 13 June 2006 concerning the costs of the retrial.

3. Verdict and judgment for Peter Monie against the Respondent in the sum of $238,750. That sum is to bear interest at the rate provided from time to time by Schedule 5 Uniform Civil Procedure Rules 2005 (a) as to the amount of $228,750, from 15 June 2007 (b) as to the amount of $10,000, from 13 June 2006.

4. Verdict and judgment for Jennifer Monie against the Respondent in the sum of $50,000. That sum is to bear interest at the rate provided from time to time by Schedule 5 Uniform Civil Procedure Rules2005 from 13 June 2006.

5. That the matter be remitted to the Common Law Division for a new trial concerning whether Sam Monie has suffered any damage in consequence of the negligence of the Respondent, and, if so, the quantum of any damages to which he is entitled, PROVIDED THAT any such new trial shall not extend to whether Sam Monie has suffered economic loss.

6. Dismiss the Notice of Cross-Appeal, save to the extent that it seeks orders concerning costs.

(a) Appellants to file and serve any written submissions within 21 days of the date of delivery of these reasons for judgment.

(b) Respondent to file and serve any written submissions within 35 days of the date of delivery of these reasons for judgment.

(c) Appellants to file and serve any written submissions in reply within 45 days of the date of delivery of these reasons for judgment.

(d) Direct that, in addition to filing and serving any written submissions in hardcopy form, each party provide a copy of the submissions in the electronic form to the Associate to Justice Campbell.

(e) Note that, unless the Court otherwise orders, the Court will be at liberty to decide all questions of costs having regard only to such submissions as have been filed and served within 45 days of the date of delivery of these reasons for judgment.

**********

03/09/2007 - Headnote added - Paragraph(s) Not applicable

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Citations

Monie v Commonwealth of Australia [2007] NSWCA 230

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CITATION:	Monie v Commonwealth of Australia [2007] NSWCA 230 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17 & 18 May 2007
JUDGMENT DATE:	3 September 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Campbell JA at 3
DECISION:	In substance, appeal allowed, verdict for Peter Monie for $238,750 plus interest; verdict for Jennifer Monie for $50,000 plus interest; new trial for Sam Monie on causation and quantum of damages (if any) excluding economic loss. Further submissions to be made concerning costs.
CATCHWORDS:	TORTS – negligence – essentials of action for negligence – duty of care – duty of care owed by Commonwealth Employment Service to prospective employer – where prospective employee referred by Commonwealth Employment Service was ex-offender – where Commonwealth Employment Service aware that prospective employee was ex-offender – where Commonwealth Employment Service failed to inform prospective employer that prospective employee was ex-offender – where employee subsequently shot employer – whether Commonwealth liable for damages suffered by employer - TORTS – negligence – voluntary assumption of risk (volenti not fit injuria) – requirements for finding of voluntary assumption of risk – where employer consented to having an ex-offender work and live on property – whether employer voluntarily consented to risk of being shot by employee - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Osborne v London and North Western Railway Company (1888) 21 QBD 220 - Randwick City Council v Muzic [2006] NSWCA 66, applied - TORTS – negligence – contributory negligence – elements of contributory negligence – causation – where employer failed to adequately interview prospective employee – where employee subsequently shot employer – whether employer’s failure to adequately interview was causative of damages suffered - TORTS – negligence – damages – assessment of general damages – past loss – interest on past loss – future loss – date as at which assessment of damages should occur on appeal - TORTS – negligence – damages – psychiatric illness – whether recognisable psychiatric illness suffered - Tame v New South Wales - Annetts v Australian Stations Pty Limited (2002) 211 CLR 317, followed - TORTS – negligence – damages – economic loss – whether negligent act causative of economic loss sustained by farm business - TORTS – negligence – damages – causation – where damage caused by combination of negligent act and other factors – whether negligent act causative of damage - March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, followed - COURTS AND JUDGES – pleadings – statement of claim – case abandoned – where statement of claim amended – whether part of case abandoned by amendment of statement of claim - COURTS AND JUDGES – witnesses – credit finding – adverse credit finding by trial judge – role of appellate court - APPEALS – where trial judge erred in making adverse credit findings – where adverse credit findings resulted in failure of plaintiff’s case – role of appellate court – need for retrial
LEGISLATION CITED:	Motor Accidents Act 1988 Privacy Act 1988 (Cth) Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules
CASES CITED:	Andjelic v Marsland (1996) 186 CLR 20 Baker v Willoughby [1970] AC 467 Brogan v McGeary (1995) Aust Torts Reports 81-342 Coulton v Holcombe (1986) 162 CLR 1 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 GEF Packaging Services Pty Ltd v Turner (Victorian Court of Appeal, 5 September 1995, unreported) Keighley, Maxsted & Co v Durant [1901] AC 240 Letang v Ottawa Electric Railway Company [1926] AC 725 Manly Council v Byrne [2004] NSWCA 123 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Marsland v Andjelic (1993) 31 NSWLR 162 Meade v Mantrell (NSW Court of Appeal, 27 March 1975, unreported) Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25 Monie v Commonwealth of Australia [2003] NSWSC 1141 Monie v Commonwealth of Australia [2006] NSWSC 505 MPB (SA) Proprietary Limited v Gogic (1991) 171 CLR 657 Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 Nicholson v Nicholson (1995) 20 MVR 186 NSW Insurance Ministerial Corporation (formerly GIO of NSW) v Gomes (No 2) (NSW Court of Appeal, 3 December 1998, unreported) O’Brien v McKean (1968) 118 CLR 540 Osborne v London and North Western Railway Company (1888) 21 QBD 220 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Randwick City Council v Muzic [2006] NSWCA 66 Richard Martin Tory v Michael Megna [2007] NSWCA 13 Roggenkamp v Bennett (1950) 80 CLR 292 Smith v Baker & Sons [1891] AC 325 Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 Weiss v The Queen (2005) 224 CLR 300
PARTIES:	Peter John Monie - First Appellant Jennifer Monie - Second Appellant Samuel Monie - Third Appellant Commonwealth of Australia - Respondent
FILE NUMBER(S):	CA 40375/06
COUNSEL:	D F Rofe QC; A J Tudehope - Appellants R S McIlwaine SC; B J Skinner - Respondent
SOLICITORS:	SK & Associates, Armidale - Appellants Australian Government Solicitor, Sydney - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20043/01
LOWER COURT JUDICIAL OFFICER:	Barr J
LOWER COURT DATE OF DECISION:	13 June 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Peter John Monie & Others v Commonwealth of Australia [2006] NSWSC 505

Eligibility Status
Introduction	This topic explains the jobseeker’s eligibility for assistance under the Employment Access Program (EAP). Each jobseeker has an eligibility status, which is determined by membership of an eligibility group.
Eligibility status	The eligibility status determines: the elements of the EAP the jobseeker is eligible for, and when the jobseeker becomes eligible for assistance.
Eligibility groups	The eligibility group a jobseeker belongs to decides their eligibility status. There are three eligibility groups: general access ‘especially disadvantaged’, and immediate access.