Peter John Monie v Commonwealth of Australia

[2006] NSWSC 505

CITATION:	Peter John Monie & Others v Commonwealth of Australia [2006] NSWSC 505 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	31 January 2006 - 16 February 2006, 24 March 2006, 7 June 2006
JUDGMENT DATE :	13 June 2006
JUDGMENT OF:	Barr J at 1
DECISION:	Direct the entry of a verdict and judgment for the defendant. Order the plaintiffs to pay the defendant’s costs of the retrial on an indemnity basis. No order made as to the costs of the first trial. Plaintiffs granted a certificate under the Suitors’ Fund Act 1951 for the costs of the first trial.
PARTIES:	Peter John Monie, Jennifer Ann Monie, Samuel Monie, Commonwealth of Australia
FILE NUMBER(S):	SC 20043/2001
COUNSEL:	DF Rofe QC and AJ Tudehope RS McIlwaine SC and B Skinner
SOLICITORS:	SK & Associates Australian Government Solicitior

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

13 JUNE 2006

20043/2001 PETER JOHN MONIE & OTHERS v COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: The plaintiffs, Peter John Monie (Mr P Monie), Jennifer Ann Monie (Mrs Monie) and Samuel Monie (Mr S Monie) seek an award of damages against the Commonwealth of Australia in the right of the Commonwealth Employment Service (CES). Mr P and Mrs Monie are husband and wife. Mr S Monie is their eldest son. Mr P Monie and PJ Monie & Co Pty Limited carried on the business, under the name Thornleigh & Co, of a cattle and sheep farming property at Thornleigh about 32 kilometres from Bingara. Mr P and Mrs Monie were the Directors of PJ Monie & Co Pty Limited and at all material times its shareholders were Mr P and Mrs Monie and their children, including Mr S Monie.

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. The details are controversial and I shall defer consideration of them. 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.

4 An agreement, called a Jobstart Individual Agreement and dated 22 March 1993, was brought into existence. The parties were the defendant and Thornleigh & Co. The agreement was expressed to be in respect of the employment of Darren Winsor, who was throughout called the employee. For present purposes the important parts of the Agreement were these -

2.1 The employer shall provide employment to the employee and shall provide work experience in accordance with this Agreement.
2.2 The Commonwealth shall provide subsidy payment in accordance with this Agreement in respect of the employment of the employee by the employer under the Program.
3.1 At no time shall the employee, by virtue of this Agreement, become or be considered an employee of the Commonwealth.
3.2 The relationship between the employer and the employee shall be an employment relationship subject to all the customary and statutory rights and obligations subsisting between employer and employee.
4.1 The employer shall adhere to all the provisions of the award covering the employee or, where the employee is not covered by an award, the employer shall adhere to all the provisions of the award specified in the Schedule.
4.2 The employer shall use his best endeavours to provide employment and work experience which will maintain or improve job-related skills, motivation and confidence of the employee.
5.2 Subject to the obligations of the employer under this Agreement being fulfilled, the Commonwealth shall pay the employer the subsidy specified in the Schedule upon receipt and certification of claims for payment submitted by the employer, or the authorised representative of the employer, in accordance with clause 7.
12.1 This Agreement shall become effective on the later of the respective dates on which this Agreement was executed by each party and that date shall be entered as the date of this Agreement.

5 The agreement was signed by Mr P Monie on behalf of Thornleigh & Co on 7 April 1993 and by Donna Papworth as CES Financial Delegate on behalf of CES on 13 April 1993. A Schedule was incorporated, signed by the same representatives on 7 April and 14 April 1993 respectively. It specified the title of the job as station hand under the Federal Pastoral Industry Award and the work as stock work, welding, fencing, tractor driving, horse riding, repairs and maintenance. The rate of pay was $375.00 per week and the subsidy, payable for eighteen weeks from 24 March to 27 July 1993, was $220.00 per week.

6 The Schedule also contained the entry -

PASS Program Category W13

7 PASS simply meant Program Administration Statistical System. Neither the Agreement nor the Schedule defined the code “W13”.

8 Mr Winsor’s service proceeded apparently without incident until about two-thirds of the way through the subsidy period. Then these things happened. 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.

10 Mr Winsor was later tried before a jury and found guilty of the attempted murder of Mr P Monie. He was sentenced to serve a period of imprisonment and in due course his appeal against his conviction was dismissed by the Court of Criminal Appeal. His conviction settled any issue between him and the State of New South Wales about who fired the shots at Mr P Monie and caused his injuries. At the commencement of the hearing of the present case, senior counsel for the defendant announced that although the defendant made no admission that Mr Winsor fired the shots that injured Mr P Monie and that although it was expected that Mr Winsor would deny that he had fired the shots, no submission would be made on behalf of the defence that Mr Winsor did not cause Mr P Monie’s injuries.

11 Mr Winsor had a criminal record. No member of the Monie family had ever met him before or knew anything about him. The plaintiffs were unaware of his criminal antecedents. Their case is that the defendant knew or ought to have known that he had an extensive criminal history and had served time in gaol for assault. The defendant did not inform the plaintiffs of those matters, notwithstanding that it knew, in view of the isolated location of the property, of the need for any employee of the plaintiffs to be honest, trustworthy and reliable. The plaintiffs say that if they had known about those matters the job would not have been offered to Mr Winsor. They say that in the circumstances the defendant owed them a duty to exercise reasonable skill and care in referring Mr Winsor for employment. Further, the defendant, knowing or having constructive knowledge of Mr Winsor’s criminal record, owed them a duty not to refer Mr Winsor if Mr Winsor did not agree to his criminal record being revealed to the plaintiffs. In their Further Amended Statement of Claim, filed at the commencement of the hearing, they plead as follows -

1. The Commonwealth Employment Service (“CES”) was established under the Commonwealth Employment Services Act 1978.
2. At all material times Peter Monie (“Monie”) and P.J. Monie & Co Pty Limited (“the Company”), traded in partnership as Thornleigh & Co (Thornleigh & Co”) and owned a 5,150 acre cattle and sheep farming property known as Thornleigh and situated about 32 kilometres from Bingara in New South Wales.
3. At all material times Monie and his wife Jennifer Monie (“Jennifer”) were the directors of the Company. Prior to and on 15 June 1993, and up until 13 May 1997, its shareholders were Monie, Jennifer and their children, Annabel, Samuel, Michael and Ben. On 3 November 1996, Michael Monie died and subsequently his shares in the Company were transferred to Monie and Jennifer. Since 13 May 1997 the shareholders of the Company have been Monie, Jennifer and their children, Sally, Annabel, Samuel (“Samuel”) and Ben.
4. Thornleigh is a relatively isolated property and was and had been for many years the home of Monie, Jennifer and the said children.
5. In about February/March 1993 extra station hands were required at Thornleigh and the CES at Inverell was approached by Samuel on behalf of Thornleigh & Co enquiring for a suitable employee to work as such.
6. On or about 9 March 1993 as a result of the above enquiry a man by the name of Michael Gallagher was referred to Thornleigh & Co by the CES and commenced employment at Thornleigh.
7. On or about 22 March 1993, Samuel, on behalf of Thornleigh & Co again approached the Inverell CES enquiring for a suitable employee to work at Thornleigh.
8. On 22 March 1993 the CES referred Darren James Winsor (“Winsor”) to Thornleigh where he was interviewed by Monie and his daughter Sally and was offered and given employment to work at Thornleigh.
9. At the time that the CES referred Winsor to Thornleigh it was known or should reasonably have been known to the CES that Winsor had an extensive criminal history over the period of 1984 to 1992 comprising inter alia, offences and convictions for dishonestly, assaults, public mischief and malicious damage. It was also known or should reasonably have been known to the CES that in 1992 Winsor had been convicted of assault occasioning actual bodily harm and of a breach of recognisance for an earlier assault on 18 December 1990 and was jailed for a total period of 8 months.
10. The aforesaid criminal history of Winsor was not communicated to Monie or any member of his family by the CES notwithstanding that the nature of the employment offered, the isolated location of the property and the necessity for any employee to be honest, trustworthy and reliable were known or should reasonably have been known to the CES.
11. The plaintiffs say and the facts are that had the aforesaid information concerning Winsor’s criminal history been communicated to Monie or any member of his family, when referring Winsor to Thornleigh & Co, Winsor would not have been offered or given employment at Thornleigh.
12. On 23 March 1993 following the CES referral of Winsor to Thornleigh & Co and the agreement to employ Winsor by Monie, Winsor and his fiancée moved into a worker’s cottage situated on Thornleigh preparatory to the commencement of his employment duties at Thornleigh.
13. On 24 March 1993 Winsor commenced his employment as a station hand at Thornleigh.
14. On 13 April 1993 Thornleigh & Co entered into a job start individual agreement with the defendant with respect to the employment of Winsor as a station hand at Thornleigh. The plaintiffs crave leave to refer to this agreement as if it had been fully pleaded herein.
15. On Tuesday, 15 June 1993 at about 7:30pm Monie, whilst alone at the homestead at Thornleigh, was shot 4 times by a person then unknown. The shots were fired from outside the homestead and struck Monie firstly when he was in the kitchen and later when he moved into the living room. At no stage did Monie see or was able to visually identify his assailant.
16. Subsequently Winsor was arrested by the police and charged with the shooting. At all times Winsor denied that he was the assailant and asserted his innocence.
17. On 12 September 1997 after a lengthy trial during which Winsor continued to assert his innocence a jury found Winsor guilty of attempted murder, being the shooting of Monie on 15 June 1993 and he was sentenced to a lengthy term of imprisonment.
18. The prosecution evidence established that Winsor was the gunman who shot Monie on 15 June 1993.
21. By reason of the facts pleaded in paragraphs 5, 7, 8, 9, 10, 11, 12, 13 and 14 above the plaintiffs say and the facts are that 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 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 .

12 The Defence on liability is pleaded as follows -

1. The defendant admits paragraphs 1, 3, 13, 14, 15, 16 and 17 of the Further Amended Statement of Claim.
2, The defendant does not admit paragraphs 2, 4, 5, 6, 7, 8, 10, 11, 12, 19 and 20 of the Further Amended Statement of Claim.
3. In answer to paragraph 9 of the Further Amended Statement of Claim, the defendant denies that it knew at any relevant time that Winsor had a criminal record and does not admit that it should have known about his criminal antecedents.
4. The defendant does not admit paragraph 18 of the Further Amended Statement of Claim but admits that Winsor was convicted on 12 September 1997 of the attempted murder of Peter Monie on 15 June 1993.
5. The defendant denies it owed a duty of care to each or any of the plaintiffs as alleged in paragraphs 21 and 22 of the Further Amended Statement of Claim or at all.
6. In the event that it is found the defendant did owe a duty of care to each or any of the plaintiffs (which is denied) the defendant denies it was in breach of any such duty as alleged or at all.
7. In the event that it is found the defendant did owe a duty of care to each or any of the plaintiffs (which is denied) and was in breach of such duty (which is denied) the defendant denies that any such breach caused or materially contributed to the shooting of Peter Monie on 15 June 1993 or caused or materially contributed to any injury (which is not admitted) to Jennifer Monie and Sam Monie.
8. The defendant denies that the Commonwealth Employment Service (henceforth CES) staff at Inverell made a referral in respect of Winsor as alleged or at all but says that on March 22 1993 Winsor on his own initiative selected and enquired about the vacancy for a position of station hand at “Thornleigh” which was displayed on the self-service notice board in the public area at the office of the CES Inverell. When Winsor enquired about the vacancy he was provided with the telephone number at Thornleigh and Peter Monie’s name.
Later in the day Winsor rang “Thornleigh” and made an arrangement to meet and be interviewed by Peter Monie. Following the interview Peter Monie offered Winsor employment by Thornleigh & Co at “Thornleigh” as a station hand on terms and conditions, accepted by Winsor which included residence in the workman’s cottage at “Thornleigh”. The following day Winsor and his de facto spouse moved into the workman’s cottage at “Thornleigh” and on 24 March 1993 Winsor commenced his employment with Thornleigh & Co as a station hand.
It was the duty and responsibility of Peter Monie to interview Winsor and decide whether he was suitable to be employed by Thornleigh & Co and whether Winsor was suitable to reside at “Thornleigh” in the workman’s cottage.

After Winsor was employed, Thornleigh & Co made a claim for the payment of a wage subsidy by the Commonwealth pursuant to the Jobstart Program administered by the Commonwealth Employment Service.
9. Further, in the event that it be found that the CES at Inverell did make a referral in respect of Winsor to Thornleigh & Co (which is denied), then the scope and content of any duty of care arising from such referral (the existence of which is denied) did not extend to require the referring officer to disclose the criminal antecedents of a job seeker (if known) to a prospective employer unless the referring officer determined that the job seeker’s criminal antecedents were relevant to the proposed employment. In the instance of Winsor, his criminal antecedents, if known to the referring officer, (which is not admitted) were not relevant or sufficiently relevant to the prospective employment as a station hand at “Thornleigh” to require the referring officer to either disclose such antecedents or refuse to make such referral.
10. Further, if it be found that the CES at Inverell did make a referral in respect of Winsor to Thornleigh & Co (which is denied) and if Winsor did shoot Peter Monie, it was not a reasonably foreseeable consequence of such referral that Winsor would or might shoot Peter Monie and any such duty of care which may have arisen in respect of any such referral (which is denied) did not extend to impose any duty or liability at law on the defendant in respect of such shooting.
11. Further, if it be found that the CES at Inverell did make a referral in respect of Winsor to Thornleigh & Co (which is denied) and it is found that in doing so the referring officer was in breach of a duty of care owed to the plaintiffs (the existence of such a duty and breach which is denied) such breach did not cause or materially contribute to the shooting of Peter Monie.
12. Further, if it be found that the CES at Inverell did make a referral in respect of Winsor to Thornleigh & Co (which is denied) it was the duty and responsibility of Peter Monie as manager of Thornleigh & Co to interview Winsor (which he did on 22 March 1993) and decide whether Winsor was suitable to be employed by Thornleigh & Co as a station hand at “Thornleigh” including residing in the workman’s cottage.
13. Prior to the shooting on 15 June 1993 Peter Monie became aware that Winsor had been in prison and with such knowledge continued to employ Winsor at “Thornleigh” as a station hand and continued to allow Winsor to reside in the workman’s cottage.
Once the plaintiffs, or each or any one of them, became aware that Winsor had been in prison, each freely and voluntarily assumed the risk, if any, of Winsor continuing to be employed as a station hand by Thornleigh & Co at “Thornleigh” and continuing to reside in the workman’s cottage.
14. Further, any reliance alleged by the plaintiffs, (which is denied) if proved became spent when Sam Monie and Peter Monie became aware that Winsor had been in prison.
15. Further, whether Winsor selected, on his own initiative the vacancy from the self-service notice board for a station hand at “Thornleigh” or was referred, the defendant is not liable at law for the injury caused to Peter Monie or the alleged injury (which is not admitted) caused to Jennifer and Sam Monie by the criminal act of the person who shot Peter Monie.
22. In further answer to the whole of the Further Amended Statement of Claim the defendant says that any injuries suffered by Peter Monie were caused or contributed to by his own negligence.

Darren Winsor

13 The uncontroversial evidence about Mr Winsor shows that he was born on 30 December 1970, the son of an aboriginal mother and a white father. His mother is an elder of the Gullabullah tribe. He regards himself as aboriginal. His father managed and part-owned a cattle and sheep property of some 3,500 acres in the Tamworth district. Mr Winsor began helping his father on the farm when he was seven years old. He left school at twelve years of age 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, managing animals, driving vehicles, operating machinery, sowing, stripping and the like. He was not permanently employed, however, and there were periods of time when he registered for and received unemployment benefits. He first applied for such benefits at Tamworth when he was fifteen years and nine months of age. That must have been in about September 1986.

14 Mr Winsor got into trouble with the police early in his life. In August and October 1984 he was dealt with in the Children’s Court for stealing cars. The same thing happened in 1985. He was put on a bond and given probation. In July 1988 he was dealt with at the Local Court at Tamworth on a number of charges arising out of an event in which he and others broke into his uncle’s house, stole his car and drove it unlicensed and without permission. They took a cheque book from the glove box, forged a cheque and tried to obtain a consequent benefit, including payment for a meal in a restaurant. There were seven charges altogether based on the one event. Mr Winsor was ordered to serve a number of periods of community service.

15 On 17 April 1989 he and others again broke into the uncle’s house. They stole jewellery and took the car again. This time, they apparently succeeded in obtaining benefits by deception. The Children’s Court Magistrate sentenced Mr Winsor to a number of concurrent prison terms of six and twelve months each and one of two years. As a result, he was imprisoned from 26 April 1989 until released on parole on 18 December 1989.

16 During 1990 Mr Winsor was dealt with for a number of offences. In March he was caught driving without a licence and at the same time used offensive language. On 4 June he was driving under the influence of drink. He and others maliciously damaged property and tried to claim the reward that was subsequently offered. He was ordered to serve three months’ imprisonment. On 8 August 1990 he was sentenced to one month’s imprisonment for larceny. On 31 August 1990 the Parole Board revoked his parole. He was also ordered to serve a number of short periods of imprisonment for failing to pay fines.

17 On 18 December 1990 he was dealt with for breaking, entering and stealing and other associated offences and sentenced to imprisonment for three months. At the same time he was dealt with for assaulting a man who had assaulted his, Mr Winsor’s, niece. He apparently gave the man a beating with his fists. He appealed against the sentence imposed at first instance and was given the benefit of a three year bond.

18 In March and April 1992 he was dealt with in the District Court for one count of larceny, which he had committed in August 1991 and one of assault occasioning actual bodily harm, which he had committed in July 1991. He was sentenced to three months’ imprisonment on each of those charges. The assault had taken place in prison when Mr Winsor and other inmates, apparently in performance of some ritual, threw things at a fellow inmate who was about to be released.

19 In April 1992 Mr Winsor was sentenced to six months’ imprisonment, concurrent with the two previous periods of three months. That charge arose out of a drunken brawl in an hotel.

20 The result of these several sentences was that Mr Winsor 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.

The events leading up to Mr Winsor’s employment by Thornleigh & Co and the subsidisation of his wages

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.

24 There is no evidence, and no reason to suppose, that Mr Winsor had previously been to the Inverell office of CES or that he knew anybody who worked there. He was unable in evidence to name the officer he spoke to. No other witness who was called could remember Mr Winsor’s visit. One officer who was working with CES at the time, Mrs Arca, gave evidence. I accept that she was not the person who spoke to Mr Winsor. The passage of time between the events and the commencement of proceedings (the plaintiffs did not move until June 2000 for leave to bring this claim out of time) sufficiently explains the absence of and identification of witnesses who might have known something about the matter.

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.

27 The body of the Jobstart Individual Agreement concerning Mr Winsor’s employment was completed by a person who has not been identified but who, I am satisfied, was an officer of CES. The details are few, comprising the name of the party contracting with the Commonwealth of Australia and the address and the name of the employee, Darren Winsor. Mrs Monie wrote in the name Peter John Monie and the date 7 April 1993 and Mr P Monie signed the form. Mrs Monie signed as witness and repeated the date. The Schedule was completed by the hand of the same officer. It contained the full names and addresses of the employer and employee, details of the work to be done, the name of the relevant Award, the number of hours of work weekly and the weekly rate of pay. It also recorded a subsidy of $220 per week commencing on 24 March and expiring on 27 July 1993. The PASS category W13 was inserted. Mr P Monie signed for Thornleigh & Co and the same officer for CES.

28 There was no requirement for Mr Winsor to sign the Jobstart Individual Agreement or the Schedule. Neither documents bears his writing.

29 Mr P Monie signed the documents on 7 April but the delegate of CES did not sign them until 13 and 14 April 1993 respectively. The evidence does not enable me to say whether the details of the Schedule, including the PASS code, were on the Schedule when Mr P Monie signed it. 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.

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. CES offered various kinds of assistance, one of which was the subsidisation of wages of employees who might otherwise find it particularly hard to get a job. That was called 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.

32 As I have observed, Mr Winsor was assessed as eligible for a Jobstart allowance straight away. The evidence shows that payments were made according to that assessment. Mr Rofe of Queens Counsel, for the plaintiffs, submitted that no employee other than an ex-offender could, on proper application of the rules contained in the manuals, have had immediate eligibility. It followed that CES must have known when it assessed Mr Winsor’s eligibility that he was an ex-offender. It must have had that knowledge on 22 March, when the officer wrote the name and the telephone number on paper and handed it to Mr Winsor, intending and expecting that he would get in touch with Thornleigh & Co.

33 It is necessary in order to analyse Mr Rofe’s argument to make detailed reference to the manuals. Exhibit BG is Section 1 of Volume 6 of the manual, 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 General EAP eligibility refers to a jobseeker’s
eligibility 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 Eligibility status for particular programs refers

status 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 The eligibility status determines:
status

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

· when the jobseeker becomes eligible for assistance.

Eligibility The eligibility group a jobseeker belongs to
groups 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 The three eligibility groups are:

groups

· general access (see page 22),

· ‘especially disadvantaged’ (see page 23), and

· immediate access (see page 24).

General General access to the EAP is based on
access 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 Jobseekers who are identified as
disadvantaged especially disadvantaged are eligible,
Jobseekers 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 Especially disadvantaged jobseekers include
and Torres people of Aboriginal and Torres Strait Islander
Strait descent who:

People

· 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 Jobseekers with disabilities includes

· 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 The following table shows the elements of EAP
registration that different groups of jobseekers become eligible for at registration

If eligibility is based on…	The jobseekers 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, ‘ especially
after 4 disadvantaged ’ jobseekers become eligible for:

· Special Intervention training,

· 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, general access

· Special Intervention assessment and training, and

· Job Clubs.

Eligibility After 6 months registration, general access

· JOBTRAIN

· JOBSTART, and

· SkillShare.

At p27 -

When The following table explains when eligibility for

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

jobseekers

· 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?),

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.

37 There are two further pieces of evidence that support the conclusion that on 22 March 1993 CES knew that Mr Winsor had spent time in prison. In fact the first proves it independently. In July 1993 Mr P Monie and Mr S Monie went to the Inverell office of CES to complain. They had been told by the police about Mr Winsor’s record and about the police’s opinions of Mr Winsor’s propensities. They wanted to know why CES had not told them these things. Their evidence was that they spoke to a woman. Mr S Monie says that it was Mrs Arca. Mr P Monie does not identify the woman. Mrs Arca admits seeing Mr P Monie and Mr S Monie in the office at about that time but denies having spoken to them. By that time everybody working in the office of the CES at Inverell must have been aware that Mr P Monie had been shot and that the man said to have shot him was employed pursuant to a program authorised by that office. It is not surprising that Mrs Arca remembers seeing the Monies in the office.

38 According to Mr P Monie the conversation was as follows -

Mr Monie: Why weren’t we notified of Darren Winsor’s criminal record?
The officer: I know all about his criminal record, Darren’s criminal record.
Mr Monie: 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.

39 According to Mr S Monie the conversation went as follows -

Sam Monie: Anne, how on earth could you have sent somebody to us with a long criminal history?
Mrs Arca: 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.

40 It would have been unlawful for any officer of CES to divulge Mr Winsor’s criminal history to any potential employer unless Mr Winsor first consented: Privacy Act1988, Commonwealth, s14, Principle 11. Whether and to what extent an officer might lawfully have disclosed such information to other government employees during the ordinary course of the performance of the officer’s duties does not fall for consideration here.

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.

43 The second further piece of evidence would not have satisfied me by itself that CES knew about Mr Winsor’s criminal history, but it supports the other evidence. In cross-examination of Mr Winsor there were these questions and answers -

Q. Did you ever tell the people at Gunnedah, that is the CES people at Gunnedah, anybody in the office, that in fact you had been in prison?

A. I don't want to answer that because I want to speak to him before I answer that question or the Judge.

Q. You just answer it unless the Judge corrects you on it please.

A. There's two ways. In that question I can answer that two ways, yes I did and no I didn't, but by the CES going in and asking the lady for the forms and filling them out no I never ever told her as a CES worker that I'd been incarcerated or been in trouble with the law but yes she knew that outside of work, like as a person that I knew outside of the --

Q. Do I understand you to say that you told a person who worked in the CES office that you had been in prison but that you told her not in the CES office but outside the office?

A. Yeah.

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.

The CES file

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.

46 The Gunnedah office of CES had a record of its transactions with Mr Winsor, or at least its transactions since his release from prison. The information he gave the officer on 22 March was insufficient to allow an assessment of his eligibility for entry to the Jobstart program. Neither Mr P nor Mrs Monie knew anything about Mr Winsor. I think that Mr S Monie may have known him or may have known of him, but he was away at the time. There is no evidence that on 22 March the officer who spoke to Mr Winsor gained access, by online computer or otherwise, to the records of the Gunnedah office. There is no evidence that she then knew that any office of CES had a record of Mr Winsor.

47 The delay in the commencement of these proceedings has had some unfortunate consequences. Not only can the officer who dealt with Mr Winsor not be identified. The record which the assessor must later have used cannot be produced or reproduced. The information essential to the assessment of Mr Winsor’s eligibility must in large measure have come from the record made by the Gunnedah office.

48 Much later, on 23 September 1999, perhaps soon after the defendant realised that the plaintiffs intended to bring these proceedings, the CES computer file relating to Mr Winsor was printed out. It became Exhibit BA. A more extensive version became Exhibit 22. 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. The version printed on 23 September 1999 contained material that came into existence after Mr Winsor’s assessment. It contains the entry -

Actual Cessn: 17 Jun 1993

and the comment -

DARREN CHARGED WITH ATTEMPTED MURDER OF EMPLOYER

49 The file contains a notation -

OCES USER DATE
Last Changed By: NGDH P#PAS 29 Feb1996

50 I take it that the reference to the office of the CES is to the Gunnedah office. I am unable to say what the expression “P#PAS” means. The date of the last change speaks for itself, but I note that it was almost three years after these events and that the file does not say what was changed.

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.

53 The file contains entries which support my finding as to the knowledge of CES on 22 March. There is the entry –

UE Date: 14 Dec 1992
Comm Date: 24 March 1993 Expd Cessn: 27 Jul 1993
Prog Cat: W13

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. 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.

58 I am satisfied that CES knew when Mr Winsor spoke to its officer on 22 March that he had served time in prison. Any officer dealing with him as an applicant for a job would have been able to obtain access to the full record of what CES knew. Having obtained that record, the officer would have been able and entitled to ask Mr Winsor when and why he had been in gaol. The question that arises is whether the officer ought to have done so and whether it was unreasonable for the officer to refer Mr Winsor to Thornleigh & Co without having done so.

Was CES under a duty to inform the plaintiffs of Mr Winsor’s history or decline to refer him for interview?

59 The first of the alternative ways in which the plaintiffs put their case on liability asserts that CES was under a duty to Thornleigh & Co not to refer Mr Winsor as suitable for interview or to refer him only after informing Thornleigh & Co, with Mr Winsor’s consent, what it knew about his relevant history. The breach of duty is pleaded or implied in para 22 of the Further Amended Statement of Claim and in particulars (b), (g), (j), (k), (l) and (m).

60 For years CES had in force manuals instructing its officers about the special consideration appropriate to ex-offenders. These extracts are from a manual dated 11 July 1984, Exhibit BD -

CO-ORDINATION OF EX-OFFENDER ACTIVITIES
3.0702 There is general recognition that ex-offenders require special assistance to select and obtain suitable employment because their convictions often constitute a barrier to obtaining employment.
…
3.0704 In each OCES, one officer, usually a Senior Employment Officer, will be responsible for oversighting the activities of the office in relation to all matters concerning employment of ex-offenders and will deal personally with the more difficult or unusual cases. Under the direction of the Manager, the nominated officer will also liaise with, and provide, an employment service for institutions within the OCES area which deal with ex-offenders.
3.0705 Job-seekers who are ex-offenders should be dealt with in accordance with normal procedures (Volume 2), subject only to variations outlined in succeeding items. Privacy should be provided for interviews where details of offences are likely to be discussed. The registration procedures are concerned (with few exceptions) with those who have been convicted of an offence, and the primary concern is whether, as a result of conviction and/or imprisonment, a person is experiencing or is likely to experience employment difficulties.
…
3.0707 Particular attention should be given to recording such details of sentence/conviction as:
a nature of conviction;
b date and duration of imprisonment;
c mitigating circumstances (eg first offence);
d previous imprisonment; and
e relevance of conviction to employment
3.0708 In obtaining this information it is important that the Employment Officer confines the discussion to obtaining employment-related information. This information must not be divulged to any outside person without the job-seeker’s consent.
…
3.0713 Referral of ex-offender . In considering an ex-offender for a vacancy an EO should decide, initially, whether the jobseeker’s qualifications, experience, work history etc make him/her suitable for the vacancy. If so, the EO will need to determine the relevance to employment of the particular offence. There is no universal formula to be applied in determining whether an offence is relevant to a particular vacancy and, therefore, whether a job-seeker should be referred or not. However, some factors to be considered in determining whether the applicant should be referred to the vacancy include:
a The nature of the offence. It would be inappropriate to refuse referral where the offence has little or no relevance to the prospective employment. For example, a conviction for disorderly conduct should not debar a person from most jobs. Similarly, a drink driving conviction is usually only relevant to a job which involves driving. On the other hand, theft of goods or money could well debar a person from jobs of trust and responsibility. Having regard to all this, when in doubt it is fairer to the offender to assume rehabilitation and make the referral.
b Frequency of the offence. Clearly, repeated offences of the same nature should increase an officer’s doubts about making a referral to a related job. Demonstrable evidence of change would be needed in this circumstance. On the other hand, a first offence is by no means an indication that the same offence is likely to occur again.

c Time lapse since offence occurred. The time lapse since the offence was committed must also form part of any judgment. A significant time lapse would tend to indicate rehabilitation unless:
i there is some reason to believe otherwise or
ii the time which has elapsed after release from prison is insufficient for assessment to be made.
3.0714 Disclosure of imprisonment/conviction . Details of a job-seeker’s imprisonment/conviction must not be conveyed to an employer without the person’s consent. Even if given this consent, disclosure of a person’s imprisonment/conviction to a potential employer should not be automatic. For example, where a referral is being considered to a job unrelated to the offence no purpose is served in passing on such information. Even when referral is being considered to a job which has some connection with the offence, it is not necessary to disclose this information unless the offence is a relatively recent one and is, therefore, still relevant to the job-seeker’s suitability for the job.
3.0715 When an ex-offender is being considered for referral to a job which has some connection with the offence but, at the same time, appears unwilling to have the conviction disclosed, it should be pointed out that frankness about a conviction at the outset is usually the best course of action. Furthermore, being frank with employers will widen the range of future job opportunities. Ultimately, if the person refuses consent this decision must be respected. However, if, in the judgment of the EO, the nature and/or recency of the offence calls for its disclosure to a potential employer, and consent is still refused, a referral should also ultimately be refused. In these circumstances the job-seeker should be advised and the reason given.

61 Whether Exhibit BD was still in force on 22 March 1993 is unclear. On 26 May 1993 a further manual was published, Exhibit BE. It contains these passages -

JOBSEEKERS WHO ARE EX-OFFENDERS
INTRODUCTION
27.7.001 This section is designed to support CES staff in understanding their responsibilities when providing assistance to an ‘ex-offender’. To assist in this process, it is important that all ex-offenders defined below are correctly identified on JOBSYSTEM.
27.7.002 By following these guidelines, CES staff will reduce the potential for legal liability. If in doubt, clarification must be sought from State Office.
DEFINITIONS
27.7.003 For general CES job brokerage purposes, an ex-offender is any person who has been found guilty of a criminal offence. This may or may not have involved a prison sentence but is the result of a court appearance where the client was found guilty. This definition also applies to those jobseekers who are currently undergoing home detention or taking part in a pre-release program.
27.7.004 Please note : that for an ex-offender to be classified as especially disadvantaged for DEET labour market program purposes, he or she must be rejoining the work force within 6 months of having been released from prison/incarceration or a minimum of 26 weeks on remand.
…
WHY THE NEED FOR IDENTIFICATION
Duty of care
27.7.006 When the CES assists a jobseeker eg. by making a referral, it owes a duty of care to people who may be affected by such a referral. These may be employers, co-workers, training providers, other trainees and members of the community who may have contact with the jobseeker during his/her employment or training.
…
REGISTRATION
…
27.7.009 Registration and matching of ex-offenders is the same as for other jobseekers except the CES must ascertain the relevance of the conviction to employment, its nature, date and the duration of imprisonment if any.
…
REFUSAL TO PROVIDE DETAILS OF THE CONVICTION TO THE CES
27.7.011 Some ex-offenders may not wish to disclose information relating to a conviction during a routine interview. In those instances the ex-offenders should be referred immediately to a senior officer/OIC/Occupational Psychologist to continue the interview. It should be explained to the ex-offender that the CES is unable to refer him/her to employers or labour market programs unless the CES can ascertain the nature of the conviction because of the duty of care obligations.
Procedures for JSA/NSA Recipients
27.7.012 The ex-offender should be advised that the CES will not disclose information to an employer without consent. If the ex-offender still refuses to disclose the nature of the conviction to the CES after counselling, and is applying for JSA/NSA, the “AT applied and NSWA” field on the JSA/NSA application form is not to be endorsed as the jobseeker has failed the Activity Test.
27.7.013 If an ex-offender is already in receipt of JSA/NSA, and refuses to disclose the information to the CES then the Activity Test is to be applied as an administrative breach has occurred. By refusing to provide the information as requested the ex-offender’s employment prospects are considered to be reduced as the CES is unable to provide any employment or training assistance to a jobseeker with an undisclosed conviction because of the duty of care obligations. This is set out in Section 543[1] (JSA) and Section 627[1] (NSA) of the Social Security Act 1991 – ie. not complying with the requirement to give information when requested to do so. (See Activity Testing – CES Manual Section 21.10)
…
CONSENT TO DISCLOSE RELEVANT INFORMATION
27.7.017 All ex-offenders must be asked to complete a ‘Consent to Disclose Relevant Information’ form (Annex B). This should always be completed by the ex-offender during registration or when the CES becomes aware of the conviction and retained by the CES for reference. Once the ex-offender has given his/her general consent to disclose relevant information about convictions, a notation must be made on the Job Seeker Comments Screen (COM) indicating that a consent form has been completed.
27.7.018 If CES staff identify an ex-offender who has not yet completed a ‘Consent to Disclose Relevant Information’ form, immediate remedial action is to be taken at the next contact. This ensures that the CES is able to demonstrate that the ex-offender has been made aware that sensitive information will be released if it is relevant to employment. This doesn’t apply retrospectively. The ‘Consent to Disclose Relevant Information’ form should be kept as a manual record.
REFUSAL TO COMPLETE A ‘CONSENT TO DISCLOSE RELEVANT INFORMATION’ FORM
27.7.019 If an ex-offender discloses the nature of the conviction to the CES but refuses to complete the ‘Consent to Disclose Relevant Information’ form, the CES must explain that without this consent the CES is restricted in the range of employment or training options it can offer. This is because under Duty of Care, if the conviction is considered relevant to a position, the employer must be advised.
27.7.020 While refusal to provide details of the conviction to the CES is a breach of the Activity Test, a refusal to allow disclosure to an employer or training provider is not. The ex-offender’s record must clearly show that general consent has not been given. Care must be taken as the release of this information without the ex-offender’s consent would be a breach of privacy and is therefore prohibited. Before referring an ex-offender who has refused to allow disclosure, CES staff must be reasonably certain that the ex-offender poses no special risk to the employer or others in the work place or, in the case of training, to training providers or other trainees.
REFERRAL
27.7.021 If the CES is aware that a jobseeker has a conviction, it is the responsibility of the referring officer to ascertain the nature of the conviction before any referral to an employer is made. This will involve checking the information held on the jobseeker. If the conviction is not relevant to the positions applied for, no reference should be made to it. An example of a relevant conviction could be a jobseeker who has a conviction for armed robbery applying for a position which involves the handling of large amounts of money.
27.7.022 Where an ex-offender refuses consent to disclosure and the conviction has a bearing on the job under consideration, the CES must decline referral and advise the ex-offender that because of the duty of care provisions under common law, the CES is unable to refer them to that position.
Disclaimer at Referral
27.7.023 When the CES is relying on information about convictions that has been provided by the jobseeker, the CES must advise the employer that the CES is relying on the jobseeker’s advice about the nature of the conviction and that no check has been or will be made with the relevant authorities by the CES. This disclaimer is a requirement under Duty of Care.
27.7.024 Jobseekers who are ex-offenders should not be referred using the “send straight down” (SSD) or the “applicant to ring” (ATR) method, unless the conviction is irrelevant to the position applied.
27.7.025 In those cases where the information was supplied by a relevant authority, and the CES is not relying on the jobseeker’s advice about the nature of the conviction, the above warning to employers or training providers will not be necessary.
…
SELF CANVASSED POSITIONS
27.7.027 Where an ex-offender self-canvasses a position, the duty of care that would have arisen if the CES had made the referral does not occur. This is because the CES has at no time recommended a particular jobseeker for a particular position. This also applies for vacancies canvassed by the ex-offender under JOBSTART. When an ex-offender self canvasses a position, the CES is under no obligation to, and should not, release details of prior convictions unless the general consent form has been completed even if the CES considers that the prior conviction is relevant to the position. To release this information without the jobseeker’s consent would be a breach of privacy and is therefore prohibited .
27.7.028 If an employer asks the CES why a jobseeker is disadvantaged and in receipt of the JOBSTART card, or in any other way seeks the advice of the CES as to the suitability of the ex-offender for a particular position, the CES is under no duty to, and should not, provide that advice unless the ex-offender has signed the general consent form to disclose relevant information. The employer should be advised that the Privacy Act forbids the CES to release that information and that the employer should raise this question with the jobseeker.

62 On 2 November 1993 a further version of this manual was published, Exhibit BF. Relevantly it was in almost identical terms to Exhibit BE.

63 It appears from these documents that whatever the state on 22 March 1993 of its instructions to its officers, CES recognised that it owed a duty of care not to refer to employers jobseekers who were ex-offenders unless they consented to the disclosure of their records or staff were reasonably certain that they posed no special risk to their potential employers. That summary, taken from para 27.7.020 of Exhibit BE, but reproducible elsewhere in the several manuals, seems to me to accord with the law.

64 The manuals published from time to time recognised the risks inherent in referring ex-offenders without warning to unsuspecting potential employers and never referring them without the relevant particulars of their history or a considered judgment after enquiry that a referral without disclosure presented no risk to the employer. To my mind the manuals accorded with the view of the reasonable person that to refer an ex-offender for a job vacancy other than in the circumstances recognised in the manual it would give rise to a foreseeable risk of injury. It is not clear which, if any, manual applied on 22 March 1993. However, if there was then no applicable manual, in my judgment there ought to have been.

65 It seems to me, as CES obviously recognised, that the referral of an applicant with a violent or dangerous propensity might give rise to a foreseeable risk of injury. The referee might in his ignorance employ the applicant and the dangerous propensity might manifest itself with consequent injury or loss. It would not be necessary that CES be able to foresee exactly how the danger might manifest itself and injury result.

66 It was submitted on behalf of the defendant that Mr Winsor’s record did not call for disclosure, and that, in accordance with the manual, an officer could have been satisfied, after examining the record, that Mr Winsor’s convictions were not relevant to the job he was applying for. Where a job is unrelated to an offence, it was submitted, no purpose is served in passing on information about it. Hypothetical examples were cited, as where a paedophile applies for a job minding children and a drink driver applies for a job as a driver. It was submitted that Mr Winsor’s criminal antecedents did not reveal a hardened serial criminal. The acts of which he had been convicted were “not of a nature that would be relevant to the work of a station hand”.

67 I disagree. Whoever was appointed to the job would have to work over an indefinite period of time, often in the company of others and sometimes in close company. Any officer of CES would after a simple enquiry have realised this. Mr Winsor had repeatedly committed offences violating persons and their property. The courts had considered his offences as so serious as to warrant sending him repeatedly to gaol. Anybody exhibiting Mr Winsor’s pattern of violent conduct would impress any reasonable person as being perhaps unsuitable for the work offered. It might be correct to say, as counsel for the defendant submitted, that Mr Winsor was not then recognisable as a hardened serial criminal, but he was obviously a person an employer might think twice about before employing. I reject the submission that Mr Winsor’s acts of violence, seen in context, were not relevant to the work of a station hand.

68 It was foreseeable to CES, knowing what it did about Mr Winsor, that the plaintiffs might employ him and that if they did he might act in accordance with his propensity for violence and assault and injure persons with whom he came into contact, including the plaintiffs. Not only did CES know about Mr Winsor’s propensity; it knew that the plaintiffs were unlikely to know. It knew that Mr Winsor came from another district. It had no reason to believe that the plaintiffs knew anything about him. Accordingly, CES came under a duty to guard against the resulting risk of injury. That could be done in either of two ways, namely, if Mr Winsor consented, by disclosing to the plaintiffs what it knew of his history and, if he did not, by not referring him for interview.

69 It was submitted on behalf of the defendant that any injury consequent upon the shooting of Mr P Monie resulted from the criminal behaviour of a third party and that the defendant could not be held liable because, in the absence of a special relationship, there is no duty to take reasonable care to prevent injury from the criminal behaviour of third parties: Modbury Triangle Shopping Centre Pty Liminted v Anzil [2000] HCA 61.

70 I reject the submission. Although the reference was by CES to Thornleigh & Co, Mr Winsor was no stranger to it. Far from being the kind of third party contemplated by the High Court of Australia in Modbury Triangle Shopping Centre v Anzil, he was the object of the reference. The reference implied an understanding on the part of CES that Mr Winsor might be offered the job. If he was offered the job, he and the plaintiffs would be contractually bound to each other. In the ordinary course of things, the plaintiffs would give and Mr Winsor would carry out directions. They would work together over an indefinite period of time, sometimes at close quarters. If, for the purposes of Modbury Triangle Shopping Centre v Anzil, Windsor was a third party, he was one who had a special relationship with the defendant.

Was CES in breach of its duty?

71 It was submitted by senior counsel for the defendant that CES did not refer Mr Winsor to Thornleigh & Co at all and that all that happened in effect was that Mr Winsor saw information on a card in the window and used it to make his own overture to Thornleigh & Co. There was this evidence from Mrs Arca -

Q. The abbreviation 'ATR', did that have some special meaning, if I can put in this lingo of CES, in 1993?

A. It did.

Q. What did it mean?

A. It meant 'applicant to ring'.

Q. And was that one of the ways in which information was forwarded to prospective employers?

A. Yeah.

Q. The applicant to ring employer?

A. Yeah.

Q. Back in 1993 did the CES office in Byron Street have a large glass shop frontage, if I could call it that?

A. It did.

Q. Was there a notice board placed close to the front window which was called a self-service notice board?

A. That's right, yes.

Q. And on that notice board?

TUDEHOPE: I ask my friend not to lead.

McILWAINE: Q. What was placed on that self-service notice board?

A. Current job vacancies.

Q. And to your knowledge were those vacancies --

TUDEHOPE: I ask him not to lead.

McILWAINE: Q. To your knowledge were those job vacancies placed on the self-service notice board visible from the street, from the footpath?

A. Yes.

72 I do not accept that as a correct description of what happened. There is no evidence that Thornleigh & Co or Mr P Monie were identified on the card in any way sufficient to enable a casual reader to telephone for an interview. There is no evidence that Thornleigh & Co’s telephone number was on the card. The officer’s reference to a record of telephone numbers implies that it was not. 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.

73 It would have been a simple matter for the officer who interviewed Mr Winsor to bring up his record on the computer. Of course, the officer did not know Mr Winsor. She did not even know that he was registered at CES, but she could easily have found that out, and I think that she should have found it out. She would thereby quickly and easily have armed herself with the knowledge that her employer already had and would have enabled herself to carry out her duties according to her instructions.

74 The plaintiffs adduced evidence by cross-examination of Mrs Arca about enquiries it would have been proper for an officer to make when dealing with a job applicant who was not known to the officer. When invited to agree that the officer would ask the applicant whether he was registered with CES, Mrs Arca said that that “could” be a question, but pointed out that a person did not have to be registered to apply for a job. There was this evidence -

Q. That wasn't the question I was asking. I'm not suggesting that he had to be registered, I'm saying he would be asked whether he was registered, wouldn't he?
A. Yes, yes, he would have, Yep.
…
Q. Now if he was registered what would then take place. What would you then do?

A. If he was inquiring about a position, we would ascertain as to the type of work that he could do, possibly just by asking him, and depending on what his answers were to that and if he had a specific job in mind then we would look at giving him the details of the position.

Q. If the person was registered, this is I am talking only about the front desk at the moment. If the person was registered would you take any steps to check that registration?

Q. What did she say?

OBJECTION. ALLOWED

Q. You recall anything else that was said?

A. She just said that Dad was bleeding badly but she didn't know how, where he had been shot. She didn't tell me any of those sorts of details. So, I was - she didn't - she couldn't tell me who had done it. She couldn't tell me why it happened or what the circumstance was. She just told me that Dad was on his way to hospital.

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.

125 I am satisfied that Mr Winsor told Mr S Monie that he had been in gaol and probably said that it was for assault.

126 Counsel for the plaintiffs made this submission -

For reasons previously given this incident is denied by Sam and should not be accepted. However, even if it was accepted, it may not be capable of justifying dismissal of Winsor in the absence of ascertaining the particular circumstances of the communication which may or may not have been sufficiently serious to overcome the fact that Winsor appeared to be a satisfactory worker.
Assuming that contrary to our submissions, the incident and conversations did take place it could only be explicable in the context of a considerable intake of alcohol being consumed.

127 There are two points here. Taking the second first, I accept that one might not place too much importance on a casual word uttered under the influence of alcohol. However, the reactions of Mr S Monie, in relaying the matter to Mr P Monie, and of Mr P Monie in his feeling of unease, show that they did take seriously what Mr Winsor had said.

128 It may be correct to say that a casual confession by Mr Winsor that he had been in gaol for assault might not justify dismissal, might not of itself reveal circumstances bad enough to overcome the fact that Mr Winsor appeared to be a satisfactory worker. I am quite prepared to accept the statements of the plaintiffs, particularly that of Mr P Monie, that if they had known about Mr Winsor’s criminal history on 22 or 23 March they would not have employed him. However, by the time they learned that he had been in gaol for assault, they were in quite a different position because of important things that had happened in the meantime. Mr Winsor had been working on the property for about ten weeks. His continuation in the job suggests that he was working satisfactorily and had built up some goodwill. Mr S Monie had suggested that he obtain a truck driver’s licence. There was apparently a future for him in the job. He offered at least a potential advantage to Thornleigh & Co in that he lived in the cottage and was available to be spoken to, and perhaps to be asked to assist, outside ordinary working hours. His position in that respect was different from that of Mr Gallagher, who resided in a village about fifty kilometres away. There were other advantages for Thornleigh & Co as well. Mr Winsor’s labour was subsidised. Thornleigh & Co could recoup all but $155 of Mr Winsor’s award wage of $375 per week. The subsidy still had about six weeks to run. Thornleigh & Co saved itself a further $30 per week which it withheld as rent for the cottage. The subsidy was particularly valuable because the business was not showing a profit. There was no guarantee of any immediate replacement if Mr Winsor should be dismissed. If he was dismissed, there was no guarantee that his replacement would be eligible for wage subsidy or be prepared to live on the property.

129 By denying knowledge of what Mr Winsor told Mr S Monie, the plaintiffs have put it out of their power to explain why they decided not to require Mr Winsor to tell them exactly what he meant when he spoke to Mr S Monie and to give a precise account of his criminal history so that they could assess the position and decide whether to continue to employ him or dismiss him. I have summarised the advantages to the plaintiffs of his continued employment. It is not speculation, I think, to say that in deciding to ask no questions and make no change the plaintiffs had in mind some or all of those advantages. They might also have wondered whether, if they did ask Mr Winsor for a full account and it turned out to be innocuous, they would risk damaging a work relationship they had come to value.

130 However these things may be, the plaintiffs decided to close their eyes and take the risk. No doubt that was why, as Mr Monie told the police, he felt a little uneasy. By deciding to keep their eyes closed and hope for the best the plaintiffs voluntarily assumed any risk, consequent upon Mr Winsor’s violent propensity, that he might repeat his violent criminal activity and perhaps occasion them loss and damage. From that time onwards, which was well before the time of the shooting, the defendant ceased to be responsible in law for its breach of duty. Accordingly, the plaintiffs have failed in their action.

Damages

Mr P Monie

131 Mr P Monie claims general and special damages. The latter include his share of the economic loss claimed to have been suffered by Thornleigh & Co as a consequence of the shooting. He was born on 7 November 1928, so he was sixty-four years of age when shot. He had been treated since 1977 by Dr Wakeford, physician. There was a family history of vascular disease. His mother died of hypertension at seventy-two years of age and his father of a coronary occlusion at fifty-seven years of age. Mr Monie had been a smoker but had stopped about ten years before seeing Dr Wakeford. The position in 1977 was that if he ran he suffered palpitations and shortness of breath. He used to suffer aches in his arms, relieved by Disprin. He was tense and worried about the rural economy. Essential hypertension, that is, hypertension without any specific cause, was diagnosed. Mr Monie saw Dr Wakeford regularly from then on. In 1986 a high tibial osteotomy was performed and a pulmonary embolus developed. In 1993 he underwent bilateral total knee replacements. Throughout this period his blood pressure was controlled by drugs. The diastolic reading ranged up to 110. Throughout the whole period he was mildly disabled by back pain, for which he consulted a chiropractor.

132 One of the bullets fired by Mr Winsor struck Mr Monie’s right wrist, causing a compound comminuted fracture of the distal ulnar. There were incomplete ulnar nerve palsy and other associated effects. A second bullet penetrated the right cheek and shattered the first molar in the lower jaw. The third and fourth bullets caused mainly subcutaneous injury to the right shoulder and left arm, though there may have been muscle damage. There were entry and exit wounds at those sites. At Tamworth Base Hospital a bullet was removed from the wrist and the right forearm was plastered. Mr Monie remained in hospital until discharged home on 22 June. After allowing time for the facial injury to heal, a dentist removed the roots of the shattered tooth in September 1993.

133 On 19 October 1993 Mr Monie awoke unable to move his right hand. He was dragging his right foot and had a fall. Small hypertensive strokes were diagnosed and because the symptoms did not persist the incident was called a Transient Ischemic Attack (TIA). Dr Wakeford thought that the TIA was causally related to the shooting. I accept his opinion.

134 In the meantime the wrist injury had been slowly healing. By 1995 Dr Davis, orthopaedic surgeon, thought that the condition of the wrist was static. Although the ulnar fracture was not soundly consolidated he thought that it would not cause much of a problem. The continuing disability was due mainly to the damage to the ulnar nerve. There was loss of use of the first and little fingers of the right hand and less power in the hand. There was a loss of sensation in the hand. Dr Davis assessed the permanent impairment of the right arm below the elbow at 30 per cent. I accept that assessment.

135 Mr Monie suffered a further TIA in June 2000. He was admitted to hospital with mild right hemiparesis. Ischaemic changes were seen on a scan and Warfarin was prescribed. Mr Monie remained on that drug until December the same year. In view of the good control that had been maintained over his hypertension over a period of more than seven years since the shooting it is difficult to relate these events to the shooting. Mr Monie was then seventy-two years of age with a history of many years of hypertension. I think that he would probably have suffered the TIA in any event and am not satisfied that the shooting contributed to them.

136 Mr Monie suffered substantial psychological damage. I accept the evidence of Mrs Monie that he became fearful and that he required additional security to be installed at the homestead and that the curtains be drawn. According to Dr Jungfer, psychiatrist, Mr Monie is a stoical person who suffered an acute stress reaction to the shooting. By the date of her first report, 28 May 2002, she considered that the symptoms qualified for post traumatic stress disorder. There were intrusive recollections, difficulty sleeping, mood instability, hypervigilance and an exaggerated startle response. Mr Monie had withdrawn from society and lost interest in activities. I accept the diagnosis. I accept that his condition is permanent and that he will not experience any substantial resolution of his symptoms. It is possible that he can be taught to be less anxious, though one cannot be confident about that.

137 Before the shooting Mr Monie could not run, squat, ride or perform any heavy duties because of his several disabilities. The shooting disabled him further, though he could still carry out some tasks. In view of these matters and taking into account Mr Monie’s age and the vicissitudes of life, I assess his general damages at $150,000.00 inclusive of interest.

138 Agreed out of pocket expenses are $11,668.00. I would round that figure up to $15,000.00 to allow for interest. I allow $1,000.00 for future treatment.

139 The claim for economic loss depends upon an assertion that by 1993 Thornleigh & Co was committed to the development of a cattle stud and would but for the shooting have done so. Mr P Monie and Mrs Monie claim compensation for the loss of the chance to benefit financially from that venture.

140 Given his age and orthopaedic and vascular difficulties, Mr P Monie had ceased doing most of the heavy work by 1993. Most of that work, if not carried out by employed labourers, was done by Mr S Monie. As head of the family and senior member of the partnership, Mr P Monie continued to make the major decisions about the conduct and direction of the business.

141 As the eldest son, Mr S Monie expected to replace his father when his time came. Accordingly, he was forming his own ideas about what the business should be doing and how it should be managed. Throughout the 1970s and 1980s the business had consisted mainly of grazing cattle. Some of the cattle were registered stud animals. In addition there was some grazing of sheep and some cropping. Mr S Monie wanted to develop the stud side of the business. He left school after the HSC in 1985 and after a year jackarooing completed certificates in artificial insemination and pregnancy testing in animals. He established contacts with studs in Australia and overseas. In 1990 he visited Canada and the United States of America, staying for eight or nine months and studying methods of stud management. He did this, he said, with the encouragement of Mr P Monie, who told him that he would like to improve the Thornleigh business. Mr S Monie purchased the rights in Australia and New Zealand to the use of semen in three particular Hereford bulls. He imported semen. Later he acquired rights over a fourth bull. Semen so imported was used to inseminate Thornleigh cattle and the improvement of the herd began. Records were kept. In 1994 Mr S Monie visited Canada once again to pursue his contacts. He sold semen that he had imported. His intention in June 1993 was to continue to improve the herd and develop a highly rated stud business.

142 However, Mr P Monie was not as enthusiastic as Mr S Monie about the development of the stud. In December 1992 Dr Wakeford, concerned about the stressors affecting him, wrote to his general practitioner, Dr Gassner, saying -

I gather there's a bit of tension in the family with the older son at home having been up to the Northern Territory and wanting to do all sorts of things on the place that an older and wiser counsel would defer.

143 That was no idle comment. Dr Wakeford thought that the tension was high and was writing about it because of its effect on Mr P Monie’s health.

144 Neither Mr P Monie nor Mr S Monie was prepared to accept in evidence that there was such tension over any differences of opinion they might have had. I think that the tension did exist and that it was significant. I think that the differences of opinion were significant. I think that it was far from settled that Mr P Monie was going to agree to the continued development of the stud side of the business in the way Mr S Monie desired.

145 Such financial records as the plaintiffs have produced show that the business was unprofitable. It made a loss in each of the years ended 30 June 1991, 1992 and 1993. In November 1993 Thornleigh & Co obtained from Elders Limited the right to borrow up to $200,000.00, secured by a mortgage which it granted over all its livestock, including brands and registered marks, embryos, semen straws and progeny. I am satisfied that Mr P Monie took that step because of the severe financial position the business was in. For the year ended 30 June 1994 there was a net profit of $13,983.00, but only after receipt of a Commonwealth subsidy of $22,488.00.

146 The year ended 30 June 1995 was profitable, but only because Mr P Monie decided to sell off the greater part of the stud breeding herd. On 21 April 1995 the first stage of a dispersal sale was held at Thornleigh in which cows, calves and semen packages were offered for sale. Altogether there were 266 lots. As a result, there was net profit of $81,672.00 for the year ended 30 June 1995, after bringing in profit of $278,298.00 from livestock trading.

147 The second and final stage of the dispersal sale was held on 9 October 1995, when there were 200 lots, comprising 64 heifers, 47 bulls, 76 cows and semen packages. For the year ended 30 June 1996 the profit brought in from livestock trading was $169,668.00, but the business still made a loss of $10,845.00.

148 Mr P Monie’s income tax returns show that he had no assessable income for the six years between 1 July 1990 and 30 June 1996. Thornleigh & Co paid no dividend to its owners during that time.

149 On attaining sixty-five years of age in 1994, Mr P Monie applied for and received the age pension.

150 The dispersal sales did not entirely dispose of the stud animals. Some were kept and that part of the business resumed the more modest place in the overall business that it had before Mr S Monie began to build it up and that it has to this day.

151 Mr P Monie’s evidence was that his decision to sell the stud animals was a bad one. He blamed the decision on the shooting, which, he said, had led to his anxiety, sleeplessness and depression. I am not satisfied that the decision to sell resulted from the shooting. Well before June 1993 Mr P Monie had real reservations about taking the business in the direction desired by Mr S Monie. And Mr P Monie was constantly anxious about the business for other good reasons. The pastoral industry was experiencing a long drought. Mr P Monie had a history of low back, knee problems and swollen ankles. Those symptoms, perhaps with his advancing age, resulted in what appears to have been a chronic difficulty with sleeping. It was while he was under the burden of such pressure that he confided to Dr Wakeford at the end of 1992 how worried he was about the proposed expansion of the stud. Of course, the shooting could not have alleviated his anxiety, but its effects have been exaggerated. I am not satisfied that by April 1995 it had any effect upon Mr P Monie’s decision to sell the stud animals. I think he sold them for reasons that had been bothering him for a much longer time. I think that he would have sold them in any case.

152 A substantial amount of evidence was tendered to show expected rates of advancement of the stud business and postulating, by reference to the experience of other studs, substantial profits. That evidence must be put aside.

153 Mr P Monie was 64 years old when he was shot. He would probably have continued to work for a few more years. His business, however, was unprofitable except in the year in which he sold the better part of the stud animals. The business needed subsidies of one kind and another to keep going.

154 Things would have looked up, of course. The seasons did improve and I think that it might be said that for the remaining few years of Mr P Monie’s working life Thornleigh probably suffered a modest economic loss from the disability directly resulting from the shooting. It is all in the past but impossible to calculate. I estimate it at $20,000.00 inclusive of interest. That allowance must be divided between Mr P Monie and Mrs Monie. The Articles of Association of the company and the Partnership Agreement between it and Mr P Monie give no firm idea of the proportions in which benefits might have been distributed between him and Mrs Monie. All is in the end left to discretion. I shall divide the assessed amount equally and allow Mr P Monie $10,000.00.

Mrs Monie

155 Mrs Monie claims general damages for nervous shock and her share of the economic loss of Thornleigh & Co. She said that the shooting led to feelings of fear of others, particularly that Mr Winsor might return. She became agitated sometimes when driving or when alone. I thought that Mrs Monie gave a fair account of the effects upon her of the shooting and of the progress of Mr P Monie. While she undoubtedly suffered the emotional distress and anxiety one would have expected, I think that things went somewhat further and that she suffered symptoms of a recognisable psychiatric or psychological condition. She saw Mr Hadfield, psychologist, only twice, once in July 1995 and once in July 1997. Symptoms could not have been too serious for her not to need to seek assistance more often than that. No medicine was prescribed and there was no reference to any counsellor or psychiatrist.

156 I accept the evidence of Mr Hadfield that Mrs Monie suffered a resulting fear of the dark and of being alone and experienced increasing vigilance. I accept the evidence of Dr Jungfer, psychiatrist, that Mrs Monie developed an adjustment disorder with anxious features. She saw Dr Roldan for the defendant, who thought that she had suffered an adjustment disorder. Mrs Monie closed down a business that she had been conducting in Bingara because of the need to look after Mr P Monie, but there is no claim that she suffered loss as a result. There is no claim for domestic assistance for the care of Mr P Monie.

157 I do not think that Mrs Monie’s illness was of the most serious kind. I would allow her general damages of $40,000.00 inclusive of interest. In addition I would allow her $10,000.00 as half-share of the estimated economic loss of the partnership.

Mr S Monie

158 Mr S Monie claims general damages for nervous shock. Originally he made a claim for economic loss but abandoned it a few weeks before the trial began. During the hearing I refused him leave to reinstate the claim.

159 On the night of the shooting, Mr S Monie stayed at his relatives’ house. He said that he was nervous, in a state of panic. He was feeling vulnerable and insecure because he could not comprehend what had happened. On the following day he visited his father at Tamworth Base Hospital. His father described the shooting and that, he said, had an enormous effect upon him. He was guarded because he thought that he had let his father down, having been unable to protect him. He did not sleep that night. He found out about Mr Winsor’s record and dismissed him.

160 Mr S Monie said that he developed fear, which included a fear that Mr Winsor might return and continue the attack. Accordingly, he began to carry a shotgun in his vehicle. He kept a shotgun under his bed. There was an occasion in November 1993 when the cat jumped onto his bed in the middle of the night and surprised him. He almost discharged the shotgun. At that, he realised that he had to do something and went to see Mr Hadfield, a psychologist. Mr Hadfield saw him on 25 November 1993. He saw him again, in company with Mr P Monie, on 21 December 1993 and on 10 July 1995. He saw him once more in July 1995 and on 7 July 1997 with Mr P Monie and Mrs Monie.

161 Mr Hadfield formed the view that Mr S Monie reported a high level of personal distress, with feelings of outrage, helplessness and guilt. He had become obsessive and compulsive about security, anxious and hypervigilant at night time and found it hard to sleep. He seemed to be an impulsive and reactive person, but those qualities were much exacerbated after the shooting. He would have liked to exact personal revenge on the perpetrator. By 1997 Mr S Monie was still affected by the incident though to a lesser degree. Sleep disturbance, anxiety, fear, edginess, agitation, hypervigilance and a sense of outrage remained. Mr Hadfield thought that Mr S Monie’s symptoms seemed to meet the criteria for post traumatic stress disorder. As to the prospects, Mr Hadfield said this -

Samuel’s life will move on through the incident and its aftermath has been influential in his life. His temperament and personality suggest that he will continue to keep this period alive imaginatively and in the way he constructs his own life-narrative.

162 In his report 2 June 2002 Mr Hadfield said this -

Samuel’s experience of distress seems to have deepened rather than diminished over time with the consolidation of some obsessive-compulsive patterns, guilt, anxiety and fear. Mood swings and identity issues remain unresolved. All of these are becoming disruptive to his mental, relational, work and social life. At this stage on the basis of his disclosures, he seems to satisfy the diagnostic criteria for post traumatic stress disorder. There may be underlying issues to be resolved.

163 At the end of 1995 or the beginning of 1996, after the dispersal sales, Mr S Monie left Thornleigh. His younger brother Ben, who had by then completed his studies and was working on the property, remained. Explaining why he had left Thornleigh, Mr S Monie said in evidence that since the shooting he had had an enormous amount of trouble sleeping. He referred to the carrying of the shotgun. He spent a long time planning what he would do if Mr Winsor returned. He was rundown, vigilant and angry. He was not doing his job properly. The dispersal sales played a small part in his leaving. He could not understand why Mr P Monie had decided to sell the stud animals. He moved to Warialda and established an industry making timber posts for the wine industry. At the end of 1997 he moved to Sydney and worked for a property consultant. After some time in that job, he set up his own business in property consultancy. He still does that work. He is married and has two small children.

164 The trial of Mr Winsor was protracted and there were a number of false starts and adjournments. Mr S Monie had to give evidence and he found that harrowing. One adjournment was caused when a legal officer instructing the Crown Prosecutor fell from a balcony and was hurt. Mr S Monie gave this evidence -

The thing that really concerned me was not only were there unanswered questions as to why he had shot Dad, there were many unanswered questions as to why the forensic guy died in the car accident, where the barrister was flung over a balcony, a lot of these mysterious things were happening. I just wanted to try and create a situation where that sort of thing couldn't happen to my family and, obviously, that was almost, as I found out, was almost an impossible task because I couldn't be there every time someone went to the bathroom, couldn't be there when somebody went and had a coffee. I couldn't be there the whole time for them. I was run ragged through the whole process and I was exhausted trying to - been through hell, how I could handle, how I - what I would do if certain things, if certain situations arose and I wanted --

Q. What about the position now, now he is free, do you have any concern about that?

A. I have a lot of concern. We have put in security system at Bathurst. You know, my wife and I are obviously very concerned, you know that there is nothing stopping him coming and doing something, again, to us. It's not of much a case of actually hurting me. What concerns me he will hurt somebody close to me.

165 Mr S Monie has seen a number of professional persons to adduce evidence in the case, though not for treatment. Dr Jungfer and Dr Apler are psychiatrists. Dr Roldan is a consulting psychologist and Dr Lee is a psychiatrist, both qualified by the defendant.

166 Dr Jungfer, Dr Apler and Dr Roldan expressed the view that Mr S Monie has suffered or continues to suffer from post traumatic stress disorder. The difficulty with these opinions, however, is that they all depend upon an uncritical acceptance of what Mr S Monie has told them from time to time. Nowhere do his assertions of fact appear to have been questioned or tested. There appears to be no objective evidence or test available for any of those assertions.

167 I have already referred to the tendency of Mr S Monie to exaggerate, even knowingly depart from the truth. He told Dr Roldan that Mr Winsor had been in trouble with the law for “rapes and bashings” and had been suspected over the mysterious disappearance of someone in Tamworth. He told Dr Roldan and others that the Crown Prosecutor had been thrown over the balcony and that on hearing of this Mr Winsor’s own barrister, afraid, had asked to be allowed to retire from the case but that the trial judge had refused him leave to do so. There is no evidence of precisely what happened when the instructing officer fell from the balcony or of why he did so, but Mr S Monie’s account to my mind bears the strong stamp of exaggeration. I refer again to his implied claim that the road was moved because of Mr P Monie’s concern for his safety.

168 Dr Lee does not agree that Mr S Monie meets the criteria for post traumatic stress disorder. He is of the opinion that he has become angry and overprotective. Dr Lee notes that he has had very little in the way of treatment and takes no medication. His opinion is that the anger is a reaction, given his personality style, to the shooting and that he does not require psychiatric treatment.

169 I do not doubt that Mr S Monie has been anxious, even distressed, angry and vindictive. I am also satisfied that he has exaggerated the effects of the shooting on his state of mind. Those practitioners expressing the view that Mr S Monie suffers or suffered from post traumatic stress disorder have accepted uncritically everything Mr S Monie has told them. I am not prepared to do so. I prefer the evidence of Dr Lee. I do not think that Mr S Monie has suffered any recognisable psychiatric or psychological disorder. Accordingly, his claim for damages must be rejected.

Costs

170 After I announced the verdict and published my reasons I ordered the plaintiffs to pay the defendant’s costs of the retrial but otherwise reserved questions of costs. The Court later reconvened and heard applications and submissions about costs. Mr Rofe informed the Court that the plaintiffs intended to appeal against my judgment and submitted that I should defer consideration of the costs of the first trial until the determination of the appeal because, as the solicitor for the plaintiffs wrote in a letter to the solicitor for the defendants -

… the outcome of the appeal … may well influence the appropriate order to be made in this regard.

171 I do not accept that submission. This case is thirteen years old and it is high time it came to an end. I think that justice requires that I deal with all issues before me finally and completely. If the Court of Appeal decides to interfere with my orders it can interfere with any order I make for the costs of the first trial.

172 I shall begin with the costs of the first trial. By virtue of the order of Master Malpass, as his Honour then was, the costs of the summons for an order extending time were to be costs in the ensuing proceedings.

173 It was submitted for the defendant that the result was identical to the result at the retrial and that, in accordance with the usual practice, I should order the losing party to pay the costs of the first trial on a party-party basis. Reference was made to Brittain v Commonwealth of Australia (No2) [2004] NSWCA 427. I do not think that such an order would be appropriate here, however. I need not repeat the reasons why the Court of Appeal upheld the plaintiffs’ appeal against the judgment at the first trial. Through no fault of their own the plaintiffs have had to conduct their case twice and I do not think that simply for that reason they should pay costs twice.

174 Moreover, although the result of the retrial is identical to the result after the first trial, the findings on the several issues which arose are not identical. For example, whereas at the first trial the plaintiffs lost the important and time consuming issue whether the defendant had breached its duty towards them, at the retrial they won that issue.

175 Since neither side is to blame for the unfortunate result of the first trial and the appeal I think that each, having litigated, should take the risks and consequences of litigating. I think that the costs consequences of the first trial should lie where they have fallen. I make no order as to the costs of the first trial.

176 Because of the result of the first trial and the subsequent appeal both sides have incurred further costs of the retrial. The provisions of the Suitors’ Fund Act 1951 may therefore apply. The circumstances do not appear to fall within the purview of sections 6, 6A or 6B. However, there is s6C, which provides that where a party to proceedings incurs costs but is not otherwise entitled to a payment from the Fund and the Director-General is of the opinion that a payment from the Fund, though not authorised by s6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, authorise payment from the Fund. The plaintiffs have incurred “additional costs” as well as “original costs” as those terms are defined, for example, in s6A(1). It seems to me that the Director-General may well take the view that what has happened in this case falls within the spirit and intent of s6, 6A and 6B. I therefore intend to grant the plaintiffs a certificate for the costs they incurred at the first trial.

177 The defendant did not desire such a certificate.

178 The only outstanding question over the costs of the retrial is whether the defendant should have its costs on an indemnity basis. Mr Skinner, for the defendant, read the affidavit of Gregory George Kathner, sworn on 6 June 2006, annexing letters passing between the solicitor for the defendant and the solicitor for the plaintiffs. On 21 June 2005 the solicitor for the defendant wrote a letter marked “Without Prejudice save as to Costs”, making an offer to resolve the matter on the following basis -

a) making payment to the Plaintiffs apportioned as follows:
(i) Mr Peter Monie $160,000.00
(ii) Mrs Jennifer Monie $10,000.00
(iii) Mr Samuel Monie $10,000.00
b) the Defendant to pay the Plaintiffs’ costs to be agreed or assessed;
c) the Terms of Settlement to remain confidential as between the parties and their legal advisors save as required by law or to satisfy a request of the Commonwealth Parliament or a Commonwealth Minister for information; and
d) the Defendant to have 28 days from the entry of judgment for payment of eth settlement sum.

179 The letter went on to say that the offer was made in accordance with the principles enunciated in Calderbank v Calderbank [1976] Fam 93 and that the defendant reserved the right to rely on the contents of the letter in an application for indemnity costs if the plaintiffs should fail to obtain a verdict in excess of the sums offered. The offer was expressly left open until 4:30pm on 29 June 2005.

180 On 22 June 2005 the solicitor for the plaintiffs wrote rejecting the offer.

181 Mr Skinner submitted that the proper order was that the costs already ordered be paid on an indemnity basis because the plaintiffs had recovered nothing, which was less than the amount offered. Alternatively, it was put that I had assessed damages of Mr P Monie at $176,000.00, Mrs Monie at $50,000.00 and Mr S Monie at nil, a total of $226,000.00, and had apportioned negligence between the parties in the ratio two-thirds to the defendant and one-third to the plaintiffs. Effectively, therefore, my assessment of damages for the plaintiffs was equivalent to $150,667.00, a figure short of the $180,000.00 offered in the defendant’s solicitor’s letter.

182 Mr Rofe submitted that the letter ought not to have the effect contended for because it contained onerous terms over and above the offers of the specified sums and of costs. The terms of paras (c) and (d) of the letter, it was submitted, disadvantaged the plaintiffs, who might not have been able to make arrangements in time. Mr Rofe drew particular attention to the terms of para (c), which he described as critical.

183 I do not accept those submissions. I infer from the speed at which the reply was written – by return mail – that para (c) of the letter of offer did not bear upon the minds of the plaintiffs. I think that they rejected the offer because it was not high enough. If they had been inclined to accept it but desired more time than that limited to enquire into the ramifications of para (c) I think that their solicitor would have said so.

184 I think that on ordinary principles the costs of the retrial should be paid on an indemnity basis.

Orders

185 I make the following orders -

1. Direct the entry of a verdict and judgment for the defendant.
2. Order the plaintiffs to pay the defendant’s costs of the retrial on an indemnity basis.

186 I make no order as to the costs of the first trial. I grant the plaintiffs a certificate under the Suitors’ Fund Act 1951 for the costs of the first trial.

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