Rayney v The State of Western Australia
[2019] WASCA 23
•30 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 23
CORAM: MURPHY JA
CORBOY J
HEARD: 18 JANUARY 2019
DELIVERED : 18 JANUARY 2019
PUBLISHED : 30 JANUARY 2019
FILE NO/S: CACV 15 of 2018
BETWEEN: LLOYD PATRICK RAYNEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CHANEY J
Citation: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 9] [2017] WASC 367
File Number : CIV 2177 of 2008
Catchwords:
Practice and procedure - Application for stay pending determination of related appeal - Turns on own facts
Legislation:
Nil
Result:
Application granted
Representation:
Counsel:
| Appellant | : | Mr M L Bennett |
| Respondent | : | Mr M G Watson SC, Mr R Young & Mr J Winton |
Solicitors:
| Appellant | : | Bennett + Co |
| Respondent | : | The State Solicitors Office (WA) |
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345
Haoma Mining NL v Gibbs [2017] WASCA 173
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)
Palmer v CITIC Ltd [2017] WASC 253
Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
REASONS OF THE COURT:
Introduction
This matter came before the court on 18 January 2019. The court heard on that occasion an interlocutory application by the respondent (the State), filed 24 October 2018, in an appeal by the appellant (Mr Rayney) against the decision of Chaney J in Rayney v The State of Western Australia [No 9][1] (primary decision). Mr Rayney was a barrister who had been charged with murdering his wife. The murder trial was by judge alone. Mr Rayney was acquitted.[2] Prior to being charged, a police officer involved in the investigation into the murder used words at a press conference which Mr Rayney alleged bore the imputation that he had murdered his wife.[3] Mr Rayney commenced proceedings against the State for defamation. It is those proceedings with which Chaney J dealt in the primary decision.
[1] Rayney v The State of Western Australia [No 9] [2017] WASC 367.
[2] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
[3] Primary decision [1].
Chaney J found the State liable to Mr Rayney for defamation. Chaney J ordered the State to pay Mr Rayney the sum of $846,180.82 for damages for non‑economic loss (including interest) and $1,777,235 for damages for economic loss (including interest).
On 16 February 2018, the State paid Mr Rayney the entirety of the judgment sum, being the sum of $2,649,290.61, plus his costs.[4]
[4] Affidavit of Lloyd Patrick Rayney filed 15 November 2018, par 28; affidavit of Michelle Lindley filed 24 October 2018, par 16.
This appeal, which may conveniently be referred to as the 'Defamation Appeal', involves challenges by Mr Rayney to Chaney J's decision with respect to his claim for economic loss. In effect, Mr Rayney by the Defamation Appeal seeks orders increasing his damages for economic loss.
The State, by its application filed on 24 October 2018, sought an order to the effect that this appeal (ie, the Defamation Appeal) be stayed until, in effect, other appeals which have been commenced by Mr Rayney, and their sequelae, have been determined. Those other appeals concern adverse findings in disciplinary proceedings against him. In substance, the State contended that the resolution of those other appeals will bear upon the proper and efficient disposition of the Defamation Appeal. In broad terms, the State contended that if those other appeals are unsuccessful, and Mr Rayney's name is removed from the roll of practitioners, then those matters would bear upon the challenges to Chaney J's findings of economic loss raised by Mr Rayney in the Defamation Appeal.
These other appeals, which collectively may be described as the 'Disciplinary Appeal' are presently listed for hearing on 23 April 2019. The Defamation Appeal had been listed for hearing on 16 April 2019. At the conclusion of hearing on 18 January 2019, we granted the State's application and made orders in terms of [56] below. These are our reasons.
Mr Rayney's defamation proceedings and the primary decision
On 16 September 2008, Mr Rayney commenced the primary proceedings for defamation.
Mr Rayney alleged that he was defamed by a series of statements made by Detective Senior Sergeant Jack Lee (DSS Lee) during a media conference on 20 September 2007 to the effect that (amongst other things) Mr Rayney was the prime and only suspect in the investigation into the murder of Mr Rayney's wife. Previously, DSS Lee had conducted media conferences in relation to the investigation on 16 August 2007, 22 August 2007 and 29 August 2007.[5]
[5] Primary decision [1], [8] - [10].
Chaney J found, in effect, that:[6]
1.The words used by DSS Lee, in their entirety, bore the imputation that Mr Rayney murdered his wife.
2.The defence of qualified privilege, under the Defamation Act 2005 (WA) or at common law, was not available to the State.
3.Mr Rayney was entitled to damages for non-economic loss and economic loss.
4.In relation to Mr Rayney's claim for economic loss, Chaney J said that the claim fell into three periods:[7]
(a)The first period was for $77,000 in fees written off shortly after 20 September 2007.
(b)The second period related to loss of income between 20 September 2007 and 17 December 2012 (the latter date being the date on which Mr Rayney provided an undertaking to the Legal Practice Board that he would cease engaging in legal practice without first giving 42 days written notice to the Legal Practice Board).
(c)The third period related to the period from 10 February 2016 (when Mr Rayney was released from his undertaking not to engage in legal practice by reason of the decision of the State Administrative Tribunal (Tribunal) in Rayney and Legal Practice Board of Western Australia[8]) until his anticipated date of retirement from practice, at the age of 67.
[6] Primary decision [3] - [5].
[7] Primary decision [922].
[8] Rayney and Legal Practice Board of Western Australia [2016] WASAT 7.
Chaney J observed that there was no claim for economic loss in the period between 17 December 2012 to 10 February 2016, during which period Mr Rayney's undertaking not to practise remained in effect.[9]
[9] Primary decision [933].
In relation to Mr Rayney's claim for damages for economic loss:
(a)In relation to the first period, Chaney J held that Mr Rayney should be allowed to recover $70,000.[10]
(b)In relation to the second period, Chaney J accepted that the defamatory statements made by DSS Lee caused Mr Rayney to suffer economic loss by way of loss of income for the period from the date of the defamatory statements on 20 September 2007, up to the date on which he was arrested and charged with his wife's murder. Accordingly, his Honour held that Mr Rayney could recover loss of income between 20 September 2007 up to 8 December 2010, but not for the remainder of the second period (ie, from 9 December 2010 to 17 December 2012).[11]
(c)In relation to the third period, Chaney J found that the defamatory statements of 20 September 2007 ceased to be a cause of economic loss in the period after 10 February 2016. Rather, the damage to Mr Rayney's practice from that date onwards was attributable entirely to other causes. Accordingly, Mr Rayney should not be allowed to recover for the third period.[12]
[10] Primary decision [941].
[11] Primary decision [942].
[12] Primary decision [938] - [940].
Chaney J made final orders on 20 December 2017.
The Disciplinary Proceedings and Disciplinary Appeal
On 12 October 2015, the Legal Profession Complaints Committee (LPCC) commenced disciplinary proceedings against Mr Rayney in the Tribunal, being VR 173 of 2015 (Disciplinary Proceedings). The LPCC alleged that Mr Rayney engaged in professional misconduct, in relation to (in general terms) (1) recording private conversations with his wife in contravention of the Surveillance Devices Act 1998 (WA), and (2) giving knowingly false evidence in relation to those matters in criminal proceedings against him in the Magistrates Court. The misconduct alleged by the LPCC was said to have occurred between April 2007 and 7 August 2007 (in relation to the contraventions of the Surveillance Devices Act), and on 2 February 2009 and on 19 November 2009 (in relation to the false evidence allegations).[13]
[13] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 [2].
On 25 January 2018, the Tribunal delivered reasons in Legal Profession Complaints Committee v Rayney [No 2][14] (Disciplinary Decision) and found, in effect, that Mr Rayney had engaged in professional misconduct:[15]
1.by recording private conversations, in the period between April 2007 to a date unknown in 2007 on or after 6 June 2007, between himself and his wife on a dictaphone in contravention of s 5(1) of the Surveillance Devices Act, when Mr Rayney knew he was acting unlawfully;
2.by swearing an affidavit on 2 February 2009 in which Mr Rayney gave knowingly false evidence on oath, with the intention of misleading the Magistrates Court; and
3.by giving evidence on 19 November 2009 on oath before a magistrate, when he knew the evidence to be false, with the intention of misleading the Magistrates Court.
[14] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
[15] Disciplinary Decision [333] - [336], [341], [355], [357] - [358], [363] - [364], [369].
On 22 February 2018, Mr Rayney commenced an appeal, CACV 23 of 2018, against the Tribunal's Disciplinary Decision.
On 18 April 2018, the Tribunal delivered its reasons on penalty in Legal Profession Complaints Committee v Rayney [No 2][16] (Penalty Decision). In its order, the Tribunal, amongst other things, made and transmitted a report to the Supreme Court (Full Bench) on the Tribunal's findings that Mr Rayney had engaged in professional misconduct, with a recommendation that Mr Rayney's name be removed from the roll of persons admitted to the legal profession.
[16] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
On 7 May 2018, Mr Rayney commenced an appeal, CACV 46 of 2018, against the Tribunal's Penalty Decision.
On 11 May 2018, Martin CJ and Murphy JA ordered that CACV 23 of 2018 and CACV 46 of 2018 be consolidated. CACV 46 of 2018 is the lead appeal.
The Defamation Appeal
The appeal
On 31 January 2018, Mr Rayney filed an appeal notice commencing the Defamation Appeal against Chaney J's decision insofar as it related to the award of damages. On 7 March 2018, Mr Rayney filed an appellant's case. On 1 June 2018, he filed an amended appellant's case. By that amended appellant's case, Mr Rayney seeks, amongst other things, orders to the effect that the State pay damages on account of economic loss suffered by Mr Rayney in the period between 9 December 2010 and 22 November 2012, and from 10 February 2016 to 24 January 2018, adjusted to take into account, by way of deduction, income Mr Rayney actually earned and received during the period between 9 December 2010 and 22 November 2012, and 10 February 2016 to 24 January 2018.
In his amended appellant's case, Mr Rayney's grounds of appeal are to the effect that Chaney J:
1.Erred by failing to give reasons for his finding that the defamatory publication was not a cause of Mr Rayney's economic loss after 10 February 2016; alternatively the finding was against the evidence.
2.Erred in finding that the murder charge on 8 December 2010 and a restrictive condition placed on his practising certificate relevantly broke the chain of causation in relation to his claim for economic loss in the period after 8 December 2010; alternatively, his Honour failed to provide reasons for rejecting Mr Rayney's evidence in that regard.
3.Erred in law in failing to give reasons in relation to the award of interest.
In the respondent's answer, the State contends, in effect, that Chaney J was correct to limit Mr Rayney's damages for economic loss to the period before he was charged with the murder of his wife. It submits, amongst other things, that policy considerations are relevant to whether the alleged harm ought fairly be regarded as a consequence of the tortious conduct.[17] The State submits (at par 42), with reference to the observations of the High Court in Wallace v Kam[18] that:
Causation, for the purposes of the common law, is a question of fact to be determined according to common sense and not according to philosophical and scientific notions of causation. The Court inevitably asks two questions: a question of historical fact as to how particular harm occurred and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. That test at common law is consistent with the approach under the Civil Liability Act [2002 (WA)].
[17] Respondent's answer filed 10 September 2018, par 56.
[18] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [11] - [12].
The State contends that s 5C and s 5D of the Civil Liability Act apply to Mr Rayney's defamation proceedings.[19]
[19] Respondent's answer filed 10 September 2018, par 54.
The State makes submissions in a similar vein with respect to its notice of contention, referred to below.
The notice of contention
The State also filed a notice of contention in the Defamation Appeal in the following terms:
1.[The judge's] finding that [Mr Rayney] had not suffered any economic loss as a result of DSS Lee's comments at the press conference in 2007 after 8 December 2010 can be upheld on grounds other than those relied on by his Honour and, in particular:
(a)on 25 January 2018, the [Tribunal] found that [Mr Rayney] engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA) by:
(i)knowingly engaging in unlawful conduct between about April 2007 and on or after June 2007;
(ii)by knowingly giving false evidence with the intention of misleading the Magistrates Court in an affidavit sworn on 2 February 2009; and
(iii)by knowingly giving false evidence with the intention of misleading the Magistrates Court on 19 November 2009;
(b)on 18 April 2018, the [Tribunal] found that [Mr Rayney] lacked the honesty and candour that are essential attributes for a legal practitioner and made orders that a report be transmitted to the Supreme Court (Full Bench) regarding [Mr Rayney's] professional misconduct and recommending that [Mr Rayney's] name be removed from the roll of persons admitted to the legal profession;
(c)the conduct, upon which, on [the Tribunal's] findings, [Mr Rayney] is not a fit and proper person to practise as a lawyer had all occurred prior to the period 8 December 2010; and
(d)in circumstances where the only reason that [Mr Rayney] would (in the absence of the comments at the press conference in 2007) have been able to earn an income as a lawyer after 8 December 2010 was his own conduct rendering him unfit to do so had not yet been identified and dealt with by the relevant authorities, his loss of any earning capacity ought not fairly be regarded as consequence of the press conference.
The State's application to adduce additional evidence
In the Defamation Appeal, the State filed an application on 22 June 2018 to adduce, as additional evidence in the appeal, the Disciplinary Decision, the Penalty Decision, and the orders made by the Tribunal on 25 January 2018 and 18 April 2018 in consequence of those decisions.
Mr Rayney's submissions in response to the State's answer and reply to the notice of contention
On 27 July 2018, Mr Rayney filed submissions in response to the (State's) respondent's answer, and in reply to the State's notice of contention.
In relation to the State's answer, Mr Rayney disputes the application of the Civil Liability Act and submits that the point should not be raised on appeal as it was not raised at trial.[20] Amongst other things, Mr Rayney also contends that:[21]
In attempting to apply the 'normative considerations' at common law and under the Civil Liability Act to a policy argument that the [State] should not be responsible for economic loss that occurred at a time '[Mr Rayney] was not fit to earn particular income', the [State] misconstrues the meaning and operation of s 5C of the Civil Liability Act and what is meant by 'appropriate' or 'fair' in that context.
The [State] must take [Mr Rayney] as it finds him, and in this case the [State] finds [Mr Rayney] entitled to practise law during the period in question.
[20] Appellant's submissions in response filed 27 July 2018, pars 24 - 25.
[21] Appellant's submissions in response filed 27 July 2018, pars 29 - 30.
In relation to the State's notice of contention, Mr Rayney submits:[22]
[Mr Rayney] does not concede the [State's] Notice of Contention, primarily for 2 reasons:
The findings of the [Tribunal] … and the orders made by the Tribunal in respect to penalty are currently the subject of appeal in CACV 46 of 2018 (consolidated with CACV 23 of 2018).
To the extent that any conduct of [Mr Rayney] 'had not yet been identified and dealt with by the relevant authorities', such conduct is irrelevant to the question of whether damages for economic loss ought to be awarded for that period. The only relevant comparison to be made is [Mr Rayney's] earning capacity following the defamatory publication, versus [Mr Rayney's] earning capacity in the hypothetical scenario of there being no defamatory publication.
Mr Rayney's application to adduce additional evidence
[22] Appellant's submissions in response filed 27 July 2018, par 37.
Mr Rayney has also filed his own application, on 27 July 2018, to adduce additional evidence at the hearing of the Defamation Appeal. The documents sought to be adduced by Mr Rayney in this application include:
1.The appellant's case filed by Mr Rayney in the Disciplinary Appeal.
2.An application by Mr Rayney to adduce further evidence in the Disciplinary Appeal, together with an affidavit and submissions, in support of that application.[23]
[23] Appellant's application filed 27 July 2018, pars 1.6 - 1.8.
Mr Rayney submits in that regard:[24]
[A]dmitting only [the State's additional] evidence would give the Court the incorrect understanding that the [Disciplinary] Proceedings have been finally determined.
In the event that the Court is minded to allow the [State's] application to adduce further evidence, [Mr Rayney] seeks to admit relevant responsive evidence, being documents filed to date with the Supreme Court of Western Australia by [Mr Rayney] in CACV 46 of 2018 (Rayney v Legal Profession Complaints Committee). The documents [Mr Rayney] seeks to adduce are attached to the Affidavit of Grace Rompotes sworn 27 July 2018.
These documents are necessary to apprise the Court in these proceedings of relevant matters which call into question the correctness of the Tribunal's decisions on both liability and penalty. Such evidence is directly relevant to the [State's] Notice of Contention. (emphasis added)
[24] Appellant's submissions in response filed 27 July 2018, pars 50 - 52.
Mr Rayney's application, and the State's application referred to in [25] above, have both been referred to the hearing of the Defamation Appeal.
The State's application of 24 October 2018 to stay the Defamation Appeal
The application
On 24 October 2018, the State filed its application for an order that the Defamation Appeal be stayed until:
1.the determination of the appeals in CACV 46 of 2018 and the determination of any report made or transmitted to the Supreme Court (Full Bench) by the State Administrative Tribunal in VR 173 of 2015; or
2.further order.
The evidence
On 24 October 2018, the State filed an affidavit affirmed by Michelle Lindley, solicitor, in support of the State's application to stay the Defamation Appeal, effectively deposing to the procedural history of the matters referred to above.
On 15 November 2018, Mr Rayney filed an affidavit which he had sworn in opposition to the State's application to stay the Defamation Appeal. Mr Rayney deposes, amongst other things, that:
1.The progress of the primary proceedings had been delayed:[25]
[25] Affidavit of Mr Rayney, pars 4 - 12.
(a)by the State for nearly a year; and
(b)by consent orders staying the defamation proceedings following his being charged with murder.
2.He believes that a stay of the Defamation Appeal would likely have the effect of delaying the hearing of the Defamation Appeal for at least 12 months.[26]
[26] Affidavit of Mr Rayney, pars 17 - 25.
3.Apart from the delay itself, a stay in the Defamation Appeal would seriously prejudice his financial position, in that:[27]
[27] Affidavit of Mr Rayney, pars 26 - 34.
(a)his liabilities at the time of judgment in the primary decision exceeded the judgment sum;
(b)he cannot work as a barrister or solicitor and thus cannot practise law to pay his outstanding liabilities;
(c)if the Disciplinary Appeal is unsuccessful, he will need to find work unrelated to the legal profession to meet his living expenses and to provide for his children;
(d)he believes that he remains the object of hatred and contempt and has little confidence in being able to obtain paid employment; and
(e)his attempts to obtain paid work in non‑legal capacities have, to date, been unsuccessful.
4.He is of the view that it is imperative, given that his practising certificate is currently suspended and there is a possibility of his name being removed from the roll of practitioners, that the Defamation Appeal be determined as soon as possible so that if it succeeds, he can apply any further judgment sum towards payment of his debts.
The State's submissions
The State submits, in summary, that a temporary stay of the Defamation Appeal is warranted in circumstances where:[28]
1.The outcomes of the Disciplinary Proceedings and the Disciplinary Appeal will have a material effect on the Defamation Appeal.[29]
2.A temporary stay of the Defamation Appeal would prevent similar issues being determined in a multiplicity of proceedings.
3.Any delay occasioned by a stay in the Defamation Appeal will not be extensive.
Effect of Disciplinary Appeal on the Defamation Appeal
[28] Respondent's submissions filed 24 October 2018, par 4.
[29] Respondent's submissions filed 24 October 2018, par 13.
The State submits that the Tribunal's decisions in the Disciplinary Proceedings are relevant to maintaining Chaney J's decision to limit Mr Rayney's economic loss up to 8 December 2010 (the date on which Mr Rayney was charged with murder), and if the appeal is allowed, are relevant to the assessment of the quantum of the economic loss.[30]
[30] Respondent's submissions filed 24 October 2018, par 14 citing the respondent's answer filed 22 June 2018, pars 85 - 102.
The State submits that if the Disciplinary Appeal is dismissed:[31]
1.The Tribunal's decisions are relevant to the normative considerations in relation to the test of causation, in that Mr Rayney's loss of earning capacity cannot fairly be said to be a consequence of the defamation in circumstances where his own conduct rendered him unfit to practise during those periods, but which conduct had not yet been identified and dealt with.
2.The Tribunal found that Mr Rayney's misconduct occurred in 2007 and 2009. In any hypothetical assessment of Mr Rayney's economic loss in relation to any period after 8 December 2010 (relevantly from 9 December 2010 to 22 November 2012 and from 10 February 2016 to 24 January 2018), the court should take into account that Mr Rayney was practising in circumstances in which he was later found not to be a fit and proper person by virtue of his professional misconduct prior to those periods.
3.Whilst the Tribunal findings postdate the periods the subject of the Defamation Appeal (9 December 2010 to 22 November 2012 and from 10 February 2016 to 24 January 2018), it would be contrary to public policy to compensate Mr Rayney for economic loss arising from his reduced capacity to earn income as a barrister in circumstances in which he was later found not to be fit and proper to practise law.
[31] Respondent's submissions filed 24 October 2018, par 15 citing the respondent's answer filed 22 June 2018, pars 95 - 110.
The State also submits that if the Disciplinary Appeal is dismissed, then it is also in the interests of justice that the referral to the Full Bench on penalty be determined prior to the hearing of the Defamation Appeal. The penalty determined by the Full Bench is a relevant factor in the consideration of the normative test of causation and the policy argument as to the assessment of Mr Rayney's damages. For example, if Mr Rayney were to be struck off from the roll of practitioners, as opposed to being fined, then that penalty would carry more weight in the normative and policy considerations.[32]
[32] Respondent's submissions filed 24 October 2018, par 16.
The State says that by reason of these arguments,[33] (1) the State has applied in the Defamation Appeal to adduce further evidence of the Tribunal's orders and decisions,[34] and (2) in response to that application, Mr Rayney has also applied to adduce court documents from the Disciplinary Appeal (as to which see [31] above).[35]
[33] Respondent's submissions filed 24 October 2018, par 17.
[34] Respondent's application filed 22 June 2018.
[35] Appellant's application filed 27 July 2018.
Further, the State says that if the Disciplinary Appeal is allowed, such that the findings of misconduct are overturned, then the Tribunal's decisions and orders are likely to be irrelevant, and the State's notice of contention and the parties' applications to adduce further evidence would not need to be determined by this court in the Defamation Appeal.[36]
Prevention of multiplicity of proceedings
[36] Respondent's submissions filed 24 October 2018, par 18.
The State further submits that a stay of the Defamation Appeal would prevent the same issues being determined in different appeals before this court. The State submits, in effect, that the following undesirable outcomes may result if the court does not grant the stay:[37]
1.If the court in the Defamation Appeal permits the State to adduce the further evidence of the Tribunal's orders and decisions, then it will need to determine Mr Rayney's application in the Defamation Appeal to adduce as evidence his appellant's case in the Disciplinary Appeal ‑ evidence which Mr Rayney contends 'is necessary to apprise the Court in these proceedings of relevant matters which call into question the correctness of the Tribunal's decisions on both liability and penalty'.[38]
2.If that evidence is adduced by Mr Rayney in the Defamation Appeal, the court would be invited to assess the merits of the Disciplinary Appeal before that appeal is determined.
3.The court in the Defamation Appeal could potentially reach conclusions inconsistent with the findings of the court in the Disciplinary Appeal, and potentially inconsistent with, or in disregard of, the decision of the Full Bench on the referral from the Tribunal as to the penalty to be imposed on Mr Rayney.
Delay not extensive
[37] Respondents submissions filed 24 October 2018, pars 21 ‑ 23 citing the appellant's submissions in response to the respondent's answer and in reply to notice of contention filed 27 July 2018, par 53.
[38] See [30] above, last paragraph.
The State further submits that any delay in hearing the Defamation Appeal will not be extensive because, in effect (at the time of filing its application for a stay):[39]
1.The Disciplinary Appeal is ready for hearing; and
2.The Defamation Appeal is not ready for hearing.
Mr Rayney's submissions
[39] Respondent's submissions filed 24 October 2018, par 26.
Mr Rayney filed written submissions on 29 November 2018 in opposition to the State's stay application. Mr Rayney says that he seeks finality in respect of the Defamation Proceedings. The defamatory statement was published on 20 September 2007.[40] It is in the interests of justice that the Defamation Appeal be heard and determined as soon as possible.[41]
[40] Appellant's submissions filed 29 November 2018, par 1.
[41] Appellant's submissions filed 29 November 2018, par 24.
Mr Rayney in his written submission also submits that:
1.The State, by its stay application, is effectively seeking the preliminary determination of an issue raised in the State's answer to Mr Rayney's case in this appeal, namely the relevance of the Disciplinary Proceedings in quantifying Mr Rayney's loss and damage.[42]
[42] Appellant's submissions filed 29 November 2018, par 2.
2.The Defamation Appeal is ready for hearing, and a stay would result in extensive delay, of approximately one year, to the final determination of the Defamation Appeal.[43]
[43] Appellant's submissions filed 29 November 2018, pars 6 - 9.
3.Mr Rayney is only (beyond the review of interest) seeking damages up to 24 January 2018, the day prior to the Disciplinary Decision and, thus, the Disciplinary Proceedings are entirely irrelevant and a stay is neither necessary nor warranted, given that (a) 'fitness to practise is determined at the time of the misconduct hearing', and (2) the 'appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of unprofessional acts.[44]
[44] Appellant's submissions filed 29 November 2018, pars 3, 13. Reference was made to various cases including A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253.
4.In view of the above and Mr Rayney's confinement of the Defamation Appeal by only seeking damages up to 24 January 2018, there is no multiplicity of proceedings in relation to the same issue.[45]
5.If the findings of the Tribunal are not relevant to the issues raised in the Defamation Appeal, the parties' applications to adduce further evidence fall away.[46]
6.Other considerations point against the grant of a stay:[47]
(a)the Defamation Appeal was commenced first and ought to be determined first;
(b)the Defamation Appeal is slightly more advanced than the Disciplinary Appeal;
(c)the Defamation Appeal and the Disciplinary Appeal are independent of one another;
(d)the public interest favours the refusal of a stay;
(e)there is no evidence of any prejudice to the State if the stay were refused; and
(f)the conduct of the State in delaying the primary proceedings (ie, the defamation proceedings).
[45] Appellant's submissions filed 29 November 2018, par 18.
[46] Appellant's submissions filed 29 November 2018, par 19.
[47] Appellant's submissions filed 29 November 2018, pars 20 - 24.
Further to the points raised in [44.3] ‑ [44.5] above, in oral submissions, Mr Rayney submitted that the State's arguments as to normative considerations were entirely novel in the context of defamation law and, if accepted, the court 'would be putting aside all the law that evidence of bad reputation is inadmissible in a defamation matter, and good reputation is presumed. And that has been the history of every defamation case, every defamation textbook that deals with this issue'.[48]
[48] Application ts 13.
Mr Rayney submitted that, on the present application, this court should conclude that the State's arguments are so untenable that they will necessarily be rejected by the court hearing the defamation appeal.[49]
[49] Application ts 13 - 14.
Principles
The court has the power to grant an interim order to stay the proceedings, with or without conditions. This includes the power to stay temporary the proceedings or adjourn the proceedings pending the completion of related proceedings.[50]
[50] Haoma Mining NL v Gibbs [2017] WASCA 173 [51] - [52].
Temporary stays have been granted by courts where there are pending related proceedings, having regard to various considerations, including, relevantly:[51]
1.which proceedings were commenced first;
2.whether the termination of one proceeding is likely to have a material effect on the other;
3.the public interest;
4.how far the proceedings are in each court;
5.that the law should strive against permitting multiplicity of proceedings in relation to similar issues; and
6.generally balancing the advantages and disadvantages to each party.
[51] Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287, 291; Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346, 353; Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108 [29]; Palmer v CITIC Ltd [2017] WASC 253 [8] ‑ [9]. See also Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 590; CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345, 390 fn 98.
Disposition
In our view, it was in the overall interests of the administration of justice for the State's application for a stay of the Defamation Appeal to be granted. The following matters appeared to us to be particularly relevant:
1.The Defamation Appeal was listed for hearing at around the same time as the Disciplinary Appeal. The gap in listing of one week was not significant for present purposes. Both decisions, it may be inferred, would be reserved, and it is unlikely that a decision in the Defamation Appeal would have been delivered prior to the hearing of the Disciplinary Appeal.
2.There has been no application by Mr Rayney to strike out the State's notice of contention in the Disciplinary Appeal as vexatious or as an abuse of process, and the arguments raised in the notice of contention are in a similar vein to those raised by the State in its respondent's answer.
3.For the purposes of the present application, it is reasonable to proceed on the basis that the court hearing the Defamation Appeal may make orders allowing the reception of additional evidence in relation to the Disciplinary Proceedings as sought by the State, and responsively, by Mr Rayney (see [31] above), at least provisionally, including on the basis that the points sought to be raised by the State are at least reasonably arguable. At this juncture, on the (necessarily) relatively limited arguments presented at the hearing of this application, we were unable to conclude that either application was demonstrably hopeless. Moreover, even if the points raised by the State are novel (as Mr Raney alleges), that matter tends to confirm that they are best left to full argument in the Defamation Appeal.
4.Even if the stay sought by the State were not granted, it is difficult to foresee, realistically, that the Defamation Appeal would be completed without regard to the ultimate outcome of the Disciplinary Proceedings (whatever that conclusion might be) if:
(a)the Defamation Appeal were heard on 16 April 2019;
(b)the court in the Defamation Appeal were to allow the parties' applications to adduce additional evidence in relation to the Disciplinary Proceedings;
(c)the court reserved its decision in the Defamation Appeal;
(d)the Disciplinary Appeal is heard (as presently scheduled) the following week, on 23 April 2019, and the court reserved its decision in that appeal; and
(e)the court which heard the Disciplinary Appeal delivered reasons in the Disciplinary Appeal ahead of the court which heard the Defamation Appeal delivering reasons in the Defamation Appeal.
In those events, if Mr Rayney were successful in the Disciplinary Appeal, the parties would presumably wish (or in the State's case, be obliged) to adduce further evidence to that effect in the Defamation Appeal. Even if Mr Rayney were unsuccessful in the Disciplinary Appeal, Mr Rayney might nevertheless wish to adduce further evidence in the Defamation Appeal of his arguments[52] and, possibly, a precis of his foreshadowed evidence, in relation to the proceedings before the Full Bench. He might also wish to adduce evidence of the result of the proceedings before the Full Bench if, for example, the result was that he received a reprimand and/or a fine. Conversely, the State might apply to adduce further evidence if Mr Rayney failed in his Disciplinary Appeal, and if the Full Bench ordered his removal from the roll of practitioners. Interlocutory applications arising piece‑meal after the hearing of the Defamation Appeal of that kind would best be avoided if possible.
[52] Consistently with his approach to the orders made by the Tribunal in the Disciplinary Proceedings - see [30] and [41.1] above.
Moreover, the timing of which decision is handed down first (the decision in the Defamation Appeal or the decision in the Disciplinary Appeal) ought not be the determinative factor in the present application. The better course, prima facie, is to stay the Defamation Appeal until resolution of the Disciplinary Appeal and (if that appeal fails) any consequential determination by the Full Bench of whether or not Mr Rayney's name should be removed from the roll of practitioners.
If that course were not taken, there would be the risk that, effectively on incomplete materials in relation to the Disciplinary Proceedings,[53] the court in the Defamation Appeal might make findings concerning Mr Rayney's conduct the subject of the Disciplinary Proceedings, which later proved to be inconsistent with the decision of the court hearing the Disciplinary Appeal. Also, any adverse findings against Mr Rayney in the Defamation Appeal consistent with the Tribunal's decisions, would, prima facie, work an injustice to him if he were ultimately successful in the Disciplinary Appeal.
[53] Comprising in effect the Disciplinary Decision, Penalty Decision and orders, and the material adduced by Mr Rayney, including Mr Rayney's (1) appellant's case in the Disciplinary Appeal, and (2) his application to adduce additional evidence in the Disciplinary Appeal, an affidavit in support and his written submissions in support of that application.
In relation to the particular matters raised by Mr Rayney in [44] above:
1.The proper disposition of the State's application for a stay does not raise for determination, in this interlocutory decision, one way or another, the relevance of the Disciplinary Proceedings in quantifying Mr Rayney's loss and damage.
2.The Disciplinary Appeal is listed for hearing on 23 April 2019. If the appeal fails, there is no reason why any consequent determination of the reference and recommendation to the Full Bench could not be dealt with expeditiously. That is so even if, as Mr Rayney foreshadows, he would seek to adduce further (at this point, unspecified) evidence before the Full Bench. Any delay in the hearing of the Defamation Appeal if the stay were granted might, on the one hand, be in the order of up to 12 months, but it is difficult, at least at this point, to foresee any realistic greater delay. On the other hand, the delay may prove to be shorter than this. Moreover, for the reasons given earlier,[54] it cannot be assumed that even if the stay were not granted, the Defamation Appeal would be resolved without regard to the ultimate conclusion of the Disciplinary Proceedings.
3.The substantive arguments raised by Mr Rayney in [44.3] (and [45] above) above may prove to be correct in due course. But at this juncture, it is difficult to conclude that they will inevitably be accepted by the court hearing the Defamation Appeal.
4.For the reasons explained at [50] above, there is a risk of conflicting findings arising from multiplicity of proceedings in relation to the same issues.
5.For the reasons given earlier, it ought not be accepted, for present purposes, that the determination of the issues in the Disciplinary Appeal will be irrelevant to the determination of the issues in the Defamation Appeal.
6.The Disciplinary Appeal was commenced shortly after the commencement of the Defamation Appeal. There is, in substance, not much difference in timing. Also, both are effectively equally advanced in their preparation. Nor can it be said that they are independent of one another, when both parties have applications on foot to adduce additional evidence in the Defamation Appeal in respect of matters the subject of the Disciplinary Appeal. Further, for the reasons given earlier, the public interest favours the grant of a stay rather than its refusal, and the prejudice to the State, and Mr Rayney, if the application were refused, would be in having to deal with the Defamation Appeal on incomplete materials. Also, even if (without deciding) the State was responsible for a delay in the primary proceedings, that is insufficient to tilt the balance in favour of the refusal of the stay application. Further, the fact that consent orders were made staying the primary proceedings after Mr Rayney was charged cannot, relevantly for present purposes, be regarded as evidencing blameworthy conduct on the part of the State.
[54] See [47.4], [48] above.
In relation to Mr Rayney's evidence that a stay would seriously prejudice his financial position (see [34.3] above), two points may be made. First, it assumes that without the stay, the Defamation Appeal would be determined ahead of the Disciplinary Appeal. As indicated earlier, that outcome could not be assured. Further, it is difficult to give great weight to the evidence, which is conclusory in nature and lacks any detail as to the nature and extent of Mr Rayney's assets and liabilities.
Conclusion
It was in the interests of justice that the State's application for a stay of the Defamation Appeal be granted.
We ordered that:
1.The appeal in CACV 15 of 2018 be stayed until the determination of the appeals in CACV 46 of 2018 and the determination of any report made or transmitted to the Supreme Court (Full Bench) by the State Administrative Tribunal in VR 173 of 2015, or further order.
2.The listing date of 16 April 2019 for the hearing of the appeal in CACV 15 of 2018 be vacated.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
Associate to the Honourable Justice Murphy30 JANUARY 2019
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