Rayney v The State of Western Australia [No 4]
[2022] WASCA 44
•12 APRIL 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2022] WASCA 44
CORAM: BUSS P
MURPHY JA
CORBOY J
HEARD: 4 - 5 OCTOBER 2021
DELIVERED : 12 APRIL 2022
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:
Defamation - Damages - Economic loss - Causation - Whether judge erred in finding that appellant being charged with murder and restrictive conditions placed on his practising certificate broke the chain of causation in his claim for economic loss in defamation proceedings
Interest - Pre‑judgment interest - Whether judge erred in only awarding interest on past economic loss from date whole of loss was complete
Legislation:
Nil
Result:
Mr Rayney's application in appeal filed 25 August 2020 dismissed
State's applications in appeal filed 22 June 2018 and 21 August 2020 dismissed
Appeal allowed in part
Category: B
Representation:
Counsel:
| Appellant | : | M L Bennett |
| Respondent | : | J Thomson SC & R Young |
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
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
AMP v RTA [2001] NSWCA 186; (2001) Aust Torts Rep 81‑619
Andjelic v Marsland [1996] HCA 55; (1996) 186 CLR 20
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430
AW v Rayney [2010] WASCA 161
AW v Rayney [No 4] [2012] WASCA 117
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 554; (2018) 56 VR 674
Bennett v Jones [1977] 2 NSWLR 355
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Brownbill v Kenworth Truck Sales (NSW) Pty Ltd (1982) 59 FLR 56
Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161
Carr v Baker (1936) 36 SR (NSW) 301
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 80‑691
Concrite Pty Ltd v Rogerson [2002] NSWCA 310
Costello v Random House Australia Pty Ltd [1999] ACTSC 13; (1999) 137 ACTR 1
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147
Faulkner v Keffalinos (1971) 45 ALJR 80
Fielding v Variety Inc [1967] 2 QB 841
Fire & All Risks Insurance Co Ltd v Callinan [1978] HCA 31; (1978) 140 CLR 427
Goody v Odhams Press Ltd [1967] 1 QB 333
Graham v Barker [1961] HCA 48; (1961) 106 CLR 340
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321
Gumina v Williams (No 2) (1990) 3 WAR 351
Haber v Walker [1963] VR 339
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
Hobbelen v Nunn [1965] Qd R 105
Hudson Investment Group Ltd v Atanaskovic [2014] NSWCA 255; (2014) 311 ALR 290
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122
Jaksic v Cossar [1966] 2 NSWR 581
Jobling v Associated Dairies Ltd [1982] AC 794
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Kallouf v Middis [2008] NSWCA 61
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Kings Cross Whisper v Ray (1970) 72 SR (NSW) 339
K'Mart Australia Ltd v McCann [2004] NSWCA 283
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5
Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S)
Legal Profession Complaints Committee v Rayney [2017] WASCA 78
Legal Profession Complaints Committee v Rayney [2020] WASC 131
Leschke v Jeffs [1955] QWN 67
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425
Millicent District Council v Altschwager (1983) 50 ALR 173
Mulholland v Mitchell [1971] AC 666
Munro v Coyne [1990] WAR 333
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432
Neall v Watson (1960) 34 ALJR 364
O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; (2001) 53 NSWLR 89
Paff v Speed [1961] HCA 14; (1961) 105 CLR 549
Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116
Perry v Australian Rail Track Corp Ltd [2013] NSWSC 714; (2013) 64 MVR 121
Perry v Australian Rail Track Corporation Ltd [2013] NSWSC 714; (2013) 64 MVR 121
Plato Films Ltd v Speidel [1961] AC 1090
Pridue v Zeppos [1967] 2 NSWR 228
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Ratcliffe v Evans [1892] 2 QB 524
Rayney v Legal Profession Complaints Committee [2019] WASCA 104
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Re T & Director of Youth and Community Services [1980] 1 NSWLR 392
Riddle v McPherson (1995) 37 NSWLR 338
Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Sami v Roads Corp (Vic) [2008] VSC 377; (2008) 51 MVR 118
Saunders v The Public Trustee [2015] WASCA 203
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Smith v John Fairfax & Sons (1987) 81 ACTR 1
Smith's Newspapers Ltd v Becker (1932) 47 CLR 279
Spargo v Greatorex (1992) 59 SASR 1
State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81‑003
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Talacko v Talacko [2021] HCA 15; (2021) 95 ALJR 417
The Oropesa [1943] P 32
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Thomas v Bass [2006] WASCA 59
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Waddingham v Hulett (1887) 5 SW 27
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watts v Turpi [1999] WASCA 216; (1999) 21 WAR 402
Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402
Wilkinson v Sporting Life Publications Ltd [1933] HCA 46; (1933) 49 CLR 365
Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
Table of contents
Introduction
Background
August 2007
20 September 2007 - 8 December 2010
23 December 2010 - 1 November 2012
16 November 2012 - 17 December 2012
23 September 2013
16 December 2013
28 April 2015 - 7 May 2015
18 May 2015 - 10 February 2016
11 August 2016 - 15 December 2017
2018
Mr Rayney's claim for damages for defamation in the primary proceedings
Non-economic loss (general damage)
Mr Rayney's claim for economic loss (special damage)
Mr Rayney's expert evidence
The judge's findings - damages
Non-economic loss (general damage)
Causation
Economic loss (special damage)
Causation
Quantification
Interest
The appeal
Orders sought
Additional Damages
Interest on Additional Damages
Interest on original award of damages
The grounds of appeal
Ground 1
Ground 2
Ground 3
The State's notice of contention
The parties' applications to adduce additional evidence
Mr Rayney's submissions on the grounds of appeal
Ground 1 (after 10 February 2016)
Ground 2 (after 8 December 2010)
Ground 3 (interest)
The State's submissions on the grounds of appeal
Grounds 1 and 2
Ground 3 (interest)
The evidence relied on by Mr Rayney in support of grounds 1 and 2
Ground 1 (after 10 February 2016)
Ground 2 (after 8 December 2010)
Legal principles
Causation
Novus actus interveniens
Loss of earning capacity
Defamation
General damage
Special damage
Damages
Policy considerations and matters in mitigation of damages
Interest
Disposition of the appeal
Ground 2 (after 8 December 2010)
Ground 1 (after 10 February 2016)
Ground 3 (interest)
Mr Rayney's application to adduce further evidence
Conclusion
The State's notice of contention
The notice of contention
The State's submissions
Mr Rayney's submissions on the notice of contention and the State's application to adduce additional evidence
Disposition
Conclusion
JUDGMENT OF THE COURT:
Introduction
This is an appeal by the appellant (Mr Rayney) concerning quantum in a defamation action in relation to the decision of Chaney J in Rayney v The State of Western Australia [No 9][1] (primary decision).
[1] Rayney v The State of Western Australia [No 9] [2017] WASC 367.
Mr Rayney was a barrister who had been charged with wilfully 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 murder investigation used words at a press conference conducted on 20 September 2007 which Mr Rayney alleged bore the imputation that he had murdered his wife.[3] Mr Rayney commenced proceedings against the State of Western Australia for defamation. In the primary decision, Chaney J found the imputation proved, and ordered the respondent (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).[4]
[2] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
[3] Primary decision [1].
[4] Orders of Chaney J dated 20 December 2017, pars 2 - 3; BB 1 - 2.
In this appeal, Mr Rayney contends that the judge made errors in the primary decision, as a result of which he is entitled to a higher award for damages for economic loss. In particular, he contends that the judge erred (1) on the question of causation by not awarding him damages for economic loss after the date on which he was charged with murder, and (2) in failing to award him interest on economic loss during the period in which the judge had found that he had sustained economic loss. For the reasons which follow, the grounds alleging error on the question of causation should be dismissed, and the ground alleging error in relation to interest should be upheld.
Background
August 2007
On 7 August 2007, Mr Rayney's wife, Mrs Corryn Rayney, went missing. Nine days later, on 16 August 2007, her body was found buried off of a bush track in Kings Park. She had been murdered. From the time of her disappearance, the police carried out extensive investigations. Detective Senior Sergeant Jack Lee (DSS Lee) was the officer in charge and was designated as the police media liaison officer in relation to the investigation.[5]
20 September 2007 - 8 December 2010
[5] Primary decision [7].
Mr Rayney alleged that he was defamed by a series of statements made by 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 his wife.[6]
[6] Primary decision [1], [8] - [10].
After 20 September 2007, Mr Rayney's work as a barrister substantially dried up.[7]
[7] Primary decision [936].
On 22 November 2007, Mr Rayney wrote off fees of $77,000.[8]
[8] Respondent's reply to appellant's draft chronology (Appeal Chronology); WB 146; GB 1894 ‑ 1896; primary decision [941].
On 16 September 2008, Mr Rayney commenced the defamation action.[9]
[9] Appeal Chronology; WB 147.
On 6 August 2010, the Court of Appeal delivered reasons in AW v Rayney.[10] That decision concerned a claim for legal professional privilege by Mr Rayney in connection with a subpoena that had been issued by the police in relation to the murder investigation. Mr Rayney had claimed legal professional privilege over recordings that he had made of conversations with his wife in the context of a matrimonial dispute prior to her death. The Court of Appeal held (relevantly) that the magistrate, Magistrate Flynn, correctly found that (1) the communications were not privileged, and (2) the recordings of the conversations by Mr Rayney were made in contravention of s 5(1)(b) of the Surveillance Devices Act 1998 (WA).[11]
[10] AW v Rayney [2010] WASCA 161. The reasons were suppressed for a period: AW v Rayney [No 4] [2012] WASCA 117. The suppression orders were discharged by an order of the Court of Appeal on 17 June 2015.
[11] AW v Rayney [79], [80], [83], [90] - [92], [117], [281] - [283], [316] - [334], [345] - [355], [372].
On 8 December 2010, Mr Rayney was arrested and charged with the wilful murder of, or (in the alternative) with the manslaughter of, his wife.[12] Upon being charged, Mr Rayney notified the Legal Practice Board.[13]
23 December 2010 - 1 November 2012
[12] Appeal Chronology; WB 147.
[13] Primary decision [928].
On 23 December 2010, Mr Rayney was granted bail.[14]
[14] Consolidated Chronology; BB 623.
On 11 February 2011, the Legal Practice Board imposed conditions on Mr Rayney's practising certificate restraining him from appearing before any court or tribunal in Australia.[15]
[15] Consolidated Chronology; BB 623.
On 18 March 2011, Mr Rayney agreed to the imposition of a condition on his practising certificate to the effect that he would not appear as counsel in any jury trial in the District Court of Western Australia or the Supreme Court of Western Australia until his murder charge had been determined.[16] Mr Rayney thereafter undertook a small amount of work as a solicitor until he was ultimately acquitted.[17]
[16] Primary decision [928].
[17] Primary decision [928].
On 14 October 2011, Mr Rayney applied for a judge alone trial of the wilful murder charge.[18]
[18] Consolidated Chronology; BB 623.
On 16 July 2012, the murder trial against Mr Rayney commenced.[19] The trial was before Martin AJ. It was heard over the period 16 ‑ 18, 24 ‑ 27 and 30 ‑ 31 July, 1 ‑ 2, 7 ‑ 10, 13 ‑ 16, 20 ‑ 22 and 27 ‑ 29 August, 4 ‑ 6, 10 ‑ 12, 17 ‑ 21 and 26 ‑ 28 September, and 2 ‑ 3 and 18 ‑ 19 October 2012.[20] (Chaney J found that 'plainly Mr Rayney had no capacity to earn income from the practice of law while the trial was in progress'.[21])
[19] Consolidated Chronology; BB 623.
[20] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
[21] Primary decision [928]. Mr Rayney's actual income for the period 1 July 2012 - 10 February 2016 was agreed by the parties' experts to be nil: joint expert report of Mr Langridge and Mr Barton filed 22 February 2017, par 4.1(b); GB 965.
On 1 November 2012, Martin AJ acquitted Mr Rayney of wilful murder and manslaughter. In his Honour's reasons for judgment, Martin AJ said:[22]
The accused has engaged in discreditable conduct including knowingly arranging for illegal telephone interception, making a false declaration and deliberately giving false evidence to a court while on oath. The evidence raises suspicion; in some instances quite strong suspicion. But discreditable conduct does not prove guilt, and suspicion, even strong suspicion, falls well short of proof beyond reasonable doubt.
[22] The State of Western Australia v Rayney [No 3] [1594].
The evidence before Chaney J in the defamation proceedings included approximately 570 publications between the date of Mr Rayney's arrest (8 December 2010) until his acquittal (1 November 2012) concerning, in general terms, the arrest and the murder trial. The publications were in the form of print articles, online articles, newswires and news segment videos.[23]
16 November 2012 - 17 December 2012
[23] Media Publication Documents; GB index items 333 - 903.
On 16 November 2012, the Legal Practice Board issued a notice to Mr Rayney of its intention to cancel his practising certificate. Mr Rayney was told that the reason for this was because of the various adverse findings made against him by Martin AJ in the criminal matter.[24]
[24] Primary decision [929]; Consolidated Chronology; BB 623.
On 22 November 2012, the State lodged an appeal against the decision of Martin AJ. For that reason, by letter dated 23 November 2012, Mr Rayney offered to give a voluntary undertaking not to practise until such time as a detailed submission could be made to the Legal Practice Board.[25] The Legal Practice Board accepted this undertaking by letter dated 27 November 2012.[26]
[25] GB 1964 - 1966; Appeal Chronology; WB 148.
[26] GB 1967 - 1968; Appeal Chronology; WB 148.
Mr Rayney made a submission to the Legal Practice Board on 10 December 2012.[27]
[27] Primary decision [931].
On 13 December 2012, the Legal Practice Board advised that the Professional Affairs Committee had resolved to request that Mr Rayney provide a written undertaking that he had ceased to engage in legal practice and would not recommence without first giving the Legal Practice Board 42 days' written notice.[28]
[28] Primary decision [931].
On 17 December 2012, Mr Rayney provided an undertaking to the Legal Practice Board that he would cease engaging in legal practice and would not resume practising prior to giving the Legal Practice Board 42 days' notice.[29]
[29] Primary decision [931]; Consolidated Chronology; WB 149.
Pursuant to the undertaking, Mr Rayney did not practise - although he retained a practising certificate until it was subsequently cancelled with effect from 21 July 2015. Mr Rayney ultimately resumed the right to practise on 10 February 2016.[30]
[30] Primary decision [931] - [932].
The undertaking given by Mr Rayney on 17 December 2012 not to practise received considerable publicity, which included, in this connection, coverage of Martin AJ's findings of 'discreditable conduct' by Mr Rayney.[31]
23 September 2013
[31] Media Publication Documents; GB index items 913 - 918.
On 23 September 2013, the Court of Appeal dismissed the State's appeal against the acquittal decision of Martin AJ.[32]
16 December 2013
[32] Appeal Chronology; WB 149.
On 16 December 2013, the Legal Profession Complaints Committee (LPCC) issued a notice to Mr Rayney under s 421 of the Legal Profession Act 2008 (WA) (LP Act).[33]
28 April 2015 - 7 May 2015
[33] Appeal Chronology; WB 149.
On 28 April 2015, a trial of two counts of offences against the Telecommunications (Interception and Access) Act 1979 (Cth) commenced against Mr Rayney.[34] On 5 May 2015, Mr Rayney was acquitted of one of the telecommunications charges, and on 7 May 2015, he was acquitted of the other telecommunications charge.[35] The charging of Mr Rayney for these offences and court appearances also attracted considerable publicity, including in the period late 2007, 2008, 2012, 2013 and 2014.[36]
18 May 2015 - 10 February 2016
[34] Consolidated Chronology; BB 624.
[35] Consolidated Chronology; BB 624.
[36] See, eg, Media Publication Documents; GB index items 239 - 283, 291, 295 - 332, 905 - 927.
On 18 May 2015, Mr Rayney wrote to the Legal Practice Board informing it of his intention to resume legal practice.[37]
[37] Consolidated Chronology; BB 624.
On 2 June 2015, the Legal Practice Board issued to Mr Rayney a notice of intention to cancel his practising certificate.[38]
[38] Consolidated Chronology; BB 624.
On 16 July 2015, the Legal Practice Board cancelled Mr Rayney's local practising certificate with effect from 21 July 2015.[39]
[39] Primary decision [932]; Consolidated Chronology; BB 625; Appeal Chronology; WB 149.
On 9 October 2015, the LPCC filed an application with the State Administrative Tribunal (Tribunal) against Mr Rayney, alleging professional misconduct pursuant to s 438 of the LP Act (professional misconduct proceedings).[40]
[40] Appeal Chronology; WB 149.
On 20 - 22 October 2015, the Tribunal heard an application by Mr Rayney to set aside the Legal Practice Board's decision to cancel his practising certificate.[41]
[41] Consolidated Chronology; BB 625.
On 10 February 2016, the Tribunal delivered reasons upholding Mr Rayney's application to set aside the cancellation of his practising certificate. The Tribunal ordered the Legal Practice Board to issue Mr Rayney with a local practising certificate.[42] At this time, Mr Rayney was effectively released from his undertaking, of 17 December 2012, to cease practice.[43]
11 August 2016 - 15 December 2017
[42] Primary decision [932]; Appeal Chronology; WB 150.
[43] Primary decision [922].
On 11 August 2016, the Tribunal heard an application by Mr Rayney to summarily dismiss the professional misconduct proceedings against him which had been commenced by the LPCC.[44] On 19 December 2016, the Tribunal summarily dismissed the professional misconduct proceedings against Mr Rayney.[45]
[44] Consolidated Chronology; BB 625.
[45] Primary decision [935]; Consolidated Chronology; BB 625; Legal Profession Complaints Committee and Rayney [2016] WASAT 142.
On 13 January 2017, the LPCC appealed the dismissal of the professional misconduct proceedings.[46] On 26 April 2017, the Court of Appeal allowed the appeal against the Tribunal's decision to summarily dismiss the professional misconduct proceedings, and remitted the matter for a hearing before a differently constituted Tribunal.[47]
[46] Consolidated Chronology; BB 625.
[47] Legal Profession Complaints Committee v Rayney [2017] WASCA 78.
The primary judge heard the primary proceedings on numerous dates over the overall period 1 March - 28 July 2017.
In the period 5 ‑ 7 and 13 December 2017, the Tribunal (differently constituted) heard the professional misconduct proceedings.[48]
[48] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
On 15 December 2017, Chaney J delivered the primary decision, and, on 20 December 2017, Chaney J made final orders in the defamation proceedings.
2018
The State has filed applications in this appeal seeking to adduce as fresh evidence the matters referred to next and in [40] ‑ [43] below.[49] Pursuant to the remitted professional misconduct proceedings, on 25 January 2018, the Tribunal delivered reasons in Legal Profession Complaints Committee v Rayney [No 2][50] (Misconduct Decision) and found, in effect, that Mr Rayney had engaged in professional misconduct by:[51]
1.recording private conversations, in the period between 6 June 2007 and a date unknown in 2007, between himself and his wife on a dictaphone in contravention of s 5(1) of the Surveillance Devices Act, when Mr Rayney knew that he was acting unlawfully;
2.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.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.
[49] Respondent's application in an appeal filed 22 June 2018; Substituted YB 1 ‑ 150; Respondent's application in an appeal filed 21 August 2020; Substituted YB 151 ‑ 438. The question as to whether the evidence should be admitted is referred to later in these reasons.
[50] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5.
[51] Misconduct Decision [333] - [336], [341], [355], [357] - [358], [363] - [364], [369].
On 18 April 2018, the Tribunal delivered its reasons on penalty in Legal Profession Complaints Committee v Rayney [No 2][52] (Penalty Decision). In the Penalty Decision, the Tribunal found that not only had Mr Rayney knowingly given false evidence (twice) in the Magistrates Court in 2009 in relation to his claim for legal professional privilege, but that he also knowingly gave false evidence about such matters:[53]
1.In 2015, in proceedings before the Tribunal in which he sought to set aside the Legal Practice Board's decision to cancel his practising certificate.
2.In 2017, in his evidence in the defamation proceedings before Chaney J.
3.In 2017, in the hearing of the professional misconduct proceedings before the Tribunal.
[52] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S).
[53] Penalty Decision [126].
In that regard, the Tribunal said:[54]
By his conduct in giving evidence that he knew to be false with the intention of misleading the court in his affidavit of 2 February 2009 and in the Magistrates Court on 19 November 2009 Mr Rayney demonstrated that he lacked the honesty and integrity that are essential prerequisites to the right to practice law. Mr Rayney has demonstrated no remorse or insight into his professional misconduct in giving that false evidence. It cannot be said that the professional misconduct was isolated. Mr Rayney has knowingly given false evidence about the recording of his conversations with Mrs Rayney in 2015 in the proceedings in the Tribunal to review the [Legal Practice Board's] decision to cancel his practising certificate, in 2017 in his Supreme Court defamation action and in 2017 in the hearing before us.
Mr Rayney has suffered the many distressing, traumatic and stressful events that we have referred to in the Reasons and in these reasons. He was restricted in his ability to practice or unable to practice for almost five years. His poor financial position will be made worse if he is unable to practice and he will be deprived of the great personal satisfaction he derives from practice. The matters personal to Mr Rayney cannot override our fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and the maintenance of proper standards of legal practice. It is our view that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner.
Having regard to the need to protect the public by marking the seriousness of knowingly giving false evidence, imposing a penalty that provides personal deterrence and general deterrence we have concluded that the only appropriate penalty is to recommend to the Supreme Court (full bench) that Mr Rayney's name be removed from the roll of practitioners.
As we have decided that Mr Rayney lacks the honesty and candour that are essential attributes for a legal practitioner it is our view that we should suspend Mr Rayney's local practising certificate pending the determination of the Supreme Court.
[54] Penalty Decision [126] - [129].
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.
Mr Rayney appealed the Misconduct Decision and the Penalty Decision. The appeal was dismissed.[55] On 21 April 2020, Mr Rayney was struck off the roll of practitioners by the Full Bench, pursuant to the Tribunal's report (Strike‑Off Decision).[56] The Full Bench said:[57]
By his professional misconduct Mr Rayney has demonstrated a persistent propensity to engage in dishonest behaviour which is an anathema to a practitioner's fitness to practice. He has engaged in the utmost of serious professional misconduct by intentionally misleading the Magistrates Court and repeating his false evidence in further proceedings before this Court and in the Tribunal. By that sustained professional misconduct Mr Rayney has demonstrably failed to conduct himself with the honesty and candour required of every legal practitioner on the Roll of Practitioners. The effective functioning of the administration of justice in this State depends upon the honesty and candour of all legal practitioners who practice within its jurisdiction.
…
[W]e have determined that Mr Rayney is not a fit and proper person to remain a legal practitioner essentially because of his fundamental failure to adhere to his duties to the court to act honestly. His demonstrated willingness to engage in dishonest behaviour, and his persistent failure to appreciate the import and consequences of that behaviour, and the consequent negative impact that has rendered against the level of trust that should otherwise be reposed in him, by the court, his colleagues and clients, is so serious that the only appropriate order for the court to make was an order to remove Mr Rayney's name from the Roll of Practitioners.
[55] Rayney v Legal Profession Complaints Committee [2019] WASCA 104.
[56] Legal Profession Complaints Committee v Rayney [2020] WASC 131.
[57] Legal Profession Complaints Committee v Rayney [2020] WASC 131 [44], [47].
Mr Rayney's claim for damages for defamation in the primary proceedings
Mr Rayney claimed damages for non‑economic loss and economic loss in the defamation action.
Non-economic loss (general damage)
The State contended that if the statements at the press conference on 20 September 2007 conveyed a defamatory imputation of guilt, the acquittal of Mr Rayney in respect of the murder charges had already demonstrated to the public that Mr Rayney did not murder his wife. Thus, the State argued, damages for a finding that the comments carried the guilt imputation would not vindicate Mr Rayney, as he had already been vindicated by the acquittal.[58]
[58] Primary decision [887].
Mr Rayney submitted that no reduction should be made by reason of any vindication flowing from the acquittal or dismissal of the appeal. He referred to the requirements placed on prosecutors and the requirement for proof of criminal charges beyond reasonable doubt, which he contended were matters understood by the general public. He argued that the unfavourable impression of him created by the defamatory publications would leave people sceptical about the circumstances of his acquittal and the upholding of that acquittal on appeal. He submitted that the general public would not be taken to have read in detail the trial judge's decision in the murder trial, or the decision on appeal. He argued that the evidence as to the way he was still treated, and the reaction of the police and others to the outcome of the trial and appeal, including the continued assertion by DSS Lee and Detective Sergeant Carlos Correia (DS Correia) in their respective evidence at trial as to their ongoing suspicion of Mr Rayney, demonstrated that the acquittal did not have any vindicatory effect.[59]
Mr Rayney's claim for economic loss (special damage)
[59] Primary decision [888].
The judge said that there was no claim for economic loss in the period between 17 December 2012 and 10 February 2016, during which period Mr Rayney's undertaking not to practise remained in effect.[60]
[60] Primary decision [933].
The judge said that Mr Rayney's claim for economic loss fell into three periods:[61]
1.The first period was for $77,000 in fees written off shortly after 20 September 2007.[62]
2.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).[63]
3.The third period related to the period from 10 February 2016 (when Mr Rayney was effectively released from his undertaking of 17 December 2012 not to engage in legal practice) until his anticipated date of retirement from practice, at the age of 67.[64]
[61] Primary decision [922].
[62] See plaintiff's re-amended schedule of special damages dated 23 December 2016, par 1.1; BB 389.
[63] Compare plaintiff's re‑amended schedule of special damages dated 23 December 2016, pars 1.2 ‑ 1.3; BB 390.
[64] See plaintiff's re-amended schedule of special damages dated 23 December 2016, par 2; BB 390.
As to the second of those periods, although the judge said that Mr Rayney's claim included the whole of the period 20 September 2007 - 17 December 2012, there was a subset of that period, namely 8 December 2010 (when he was charged with murder) to 17 December 2012 (the date he gave an undertaking not to practise), in relation to which Mr Rayney had not particularised a claim for economic loss.[65] That is (in general terms), there was no particularised claim for economic loss for the second half of the financial year ended 30 June 2011, the whole of the financial year ended 30 June 2012, and the first half of the financial year ended 30 June 2013.
[65] As to Mr Rayney's plea of special damage (economic loss), see: Indorsement of claim on amended writ of summons dated 24 February 2010, par 11; BB 356 - 357; plaintiff's re‑amended schedule of special damages dated 23 December 2016, pars 1.2 - 1.3; BB 390; Mr Rayney's opening submissions at trial, ts 332 ‑ 333.
Mr Rayney accepted in this appeal that there was no particularised claim for damages for economic loss for the period 8 December 2010 ‑ 17 December 2012. He nevertheless contended that the case was fought on that basis.[66]
[66] Appellant's amended submissions in response to respondent's answer and in reply to notice of contention (filed pursuant to orders made on 12 June 2018 and 21 August 2020) (appellant's amended reply), pars 6 - 12; WB 126 ‑ 128.
The State in this appeal accepted that the time period of 8 December 2010 ‑ 17 December 2012 was addressed in the expert evidence and closing submissions.[67]
Mr Rayney's expert evidence
[67] Respondent's written submissions, par 16; WB 48.
Mr Rayney relied on the expert opinion of Mr Dennis Barton. Mr Barton prepared three reports. In his first report dated 29 January 2009,[68] Mr Barton produced three figures for economic loss using certain assumptions:[69]
1.On his 'instructed assumptions' (that is, that Mr Rayney would serve as a barrister in 2008, commence 2009 as senior counsel and retire as senior counsel at age 65), Mr Barton estimated the present value of Mr Rayney's net income, but for the defamation, as $13.979 million.
2.On his 'deterministic case' (that is, that Mr Rayney would serve as a barrister in 2008, commence 2009 as senior counsel, be appointed as a judge at age 55 and retire from the bench at age 65), Mr Barton estimated the loss, but for the defamation, as $8.972 million.
3.On a 'stochastic case' (using 'stochastistic' assumptions contemplating service as a barrister, senior counsel and then a judge), Mr Barton estimated the present value of Mr Rayney's net income, but for the defamation, as $8.802 million.
[68] GB 909 - 933.
[69] Mr Barton's report dated 29 January 2009, pars 1.2, 1.3, 6.2, 7.2, 7.3; GB 912, 924 - 925, 927 - 928.
In each case, Mr Barton was instructed to assume (amongst other things) that Mr Rayney would charge 2,300 hours (230 days) per year at the Bar, and his 2008 billing rate of $375 per hour would increase to $500 per hour over two years or, if he was appointed senior counsel, rise from $500 to $1,000 per hour over a 10‑year period.[70]
[70] Mr Barton's report dated 29 January 2009, pars 1 - 3; GB 912.
Mr Barton was instructed by Mr Rayney's solicitors on 3 November 2016 to carry out a further calculation which excluded the possibility of Mr Rayney being appointed as senior counsel and a judge. Mr Barton was also asked to take into account, in his calculations, an assumed amount of actual income earned in the period after 12 February 2016.[71]
[71] Letter from Bennett + Co to Mr Barton dated 3 November 2016; GB 1303 - 1305.
On 15 December 2016, Mr Barton provided a further report. In that report, Mr Barton assessed what he described as 'putative' income up to 31 December 2016 (described as past losses) and 'putative' future income from 1 January 2017 (described as future losses). The word 'putative' was evidently used to indicate Mr Barton's view of the income that Mr Rayney would have earned but for the defamatory statement on 20 September 2007. By that report, Mr Barton, in respect of past losses, estimated a 'putative' after tax income of $5,288,000 from which he deducted known after tax income in that period of $82,000, giving a past loss figure of $5,206,000. These calculations also assumed that Mr Rayney's annual expenses (the costs of practice) were $73,000 per annum. In relation to future losses, he estimated a putative figure for after tax income of $6,808,000 from which he deducted estimated actual future earnings of $825,000, giving a present value of future losses of $5,983,000. On this basis, Mr Barton estimated the value of all losses, but for the defamation and after mitigation, as $11,188,000 (approximately the sum of $5,206,000 and $5,983,000).[72] For the purposes of this report, Mr Barton was asked to assume (amongst other things) that:
1.Mr Rayney would have continued to practise as a barrister in the period from 20 September 2007 through to 17 December 2012 and recommenced practising full time six months after 12 February 2016.
2.Whilst practising, Mr Rayney would have charged for 2,300 hours per year.
3.Mr Rayney's charge out rates would have been, as from 1 July 2009, $500 per hour.
4.Mr Rayney would have continued to practise as a barrister until age 67.
[72] Mr Barton's report dated 15 December 2016, par 3; GB 937.
In the joint expert report,[73] it was noted that Mr Barton had been instructed to assume that 'but for' the alleged defamation, Mr Rayney would have been unrestricted in his ability to undertake his business as a barrister during the period 20 September 2007 - 17 December 2012, and to assume that Mr Rayney's charge out rate would be $500 per hour for the period from 1 July 2010 onwards. In the joint report, it was agreed that Mr Rayney's annual expenses (costs of practice) were $104,000 per annum (and not the $73,000 per annum figure used previously by Mr Barton).[74]
[73] Joint expert report of Mr Langridge and Mr Barton filed 22 February 2017; GB 955 - 975.
[74] Joint expert report of Mr Langridge and Mr Barton filed 22 February 2017, pars 3.1(b), 3.13, 3.16; GB 961, 963.
Mr Barton also did a further report on 19 July 2017, in which he commented upon (amongst other things) a supplementary report by Mr Langridge and Mr Rayney's 'post recommencement income' after 17 February 2016.[75]
[75] GB 948 - 954.
In this appeal, Mr Rayney also seeks to adduce as evidence a further report of Mr Barton dated 24 August 2020. See [87] below.
The judge's findings - damages
Non-economic loss (general damage)
The judge said:[76]
While damages are awarded to vindicate the plaintiff's reputation, they are not awarded as compensation for the loss in value of that reputation as though it were a tangible asset or physical attribute which, once damaged, is worth less than it was before.
The compensation by way of general damages includes compensation for the consequences of publication including any diminution in the regard in which the plaintiff is held by others, any isolation produced as a result of the plaintiff being shunned or avoided, and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are also awarded for the plaintiff's injured feelings, including the hurt, anxiety, loss of self‑esteem, sense of indignity and sense of outrage felt by the plaintiff.
[76] Primary decision [839] - [840].
The judge referred to evidence of people avoiding Mr Rayney, confronting him or shunning him, including at different times throughout 2011, 2013, 2014 and 2015.[77] His Honour said:[78]
Commonly, in defamation cases there is little evidence available as to damage of the plaintiff's reputation. Hurt, distress and damage to reputation are assumed to flow from a defamatory publication. In this case, perhaps unsurprisingly given the nature of the defamation and Mr Rayney's prominent professional position, the evidence establishes actual events which demonstrate the extraordinary level of odium and contempt felt towards Mr Rayney and the correlative hurt and distress suffered by him since 20 September 2007. This is not a case where one must rely on the realistic recognition of the likely 'grapevine' effect of the defamation. This is a case where the effect of the defamation surfaced regularly and forcefully.
It is necessary to consider the extent to which those matters flow from DSS Lee's defamatory statements, and the extent to which it can be said that Mr Rayney's reputation was vindicated by his acquittal and the dismissal of the State's appeal. (emphasis added)
[77] Primary decision [857] - [885].
[78] Primary decision [884] - [885].
The judge then turned to the topic of vindication, and the State's submission to the effect that if the defamatory statement conveyed an imputation of guilt, damages were unnecessary in respect of vindication because Mr Rayney had been publicly vindicated by the acquittal and the dismissal of the State's appeal. His Honour said:[79]
As noted above, one of the three purposes of an award of damages for non‑economic loss is vindication of the plaintiff's reputation. Vindication is not a separate head of damages, but is one of the elements to be considered in determining the amount of an award ...
…
… I accept, that the general public would not be taken to have read in detail the trial judge's decision in the murder trial, or the decision on appeal …
The evidence supports a conclusion that at least some significant component of the public does not view Mr Rayney's acquittal and the dismissal of the appeal as vindicating his reputation. I am of the view that the proper assessment of damages for non‑economic loss should take account of the requirement that the amount should signal to the public the vindication of the plaintiff's reputation. I do not consider that Mr Rayney's acquittal or the dismissal of the appeal against that acquittal can, in light of the evidence of incidents occurring after that time, be said to have vindicated his reputation. (emphasis added)
Causation
[79] Primary decision [886], [888] - [889].
On the question of causation, the judge said that it was well established that a plaintiff need only show that the relevant defamatory statement was a cause of his loss, rather than the cause.[80]
[80] Primary decision [841].
His Honour also said:[81]
[81] Primary decision [890] - [894].
Mr Rayney was cross‑examined as to whether he agreed that various proceedings taken against him were, in effect, more likely to cause damage to his reputation than what was said at DSS Lee's press conference. Those events included:
•His being charged with wilful murder on 8 December 2010 and subsequently tried on that charge in 2012.
•A finding by Brian Martin AJ in his reasons in the murder trial that Mr Rayney had engaged in discreditable conduct, including knowingly arranging for illegal phone interception, making a false declaration and deliberately giving false evidence to a court while on oath.
•A finding by Brian Martin AJ that in an effort to obtain information, Mr Rayney was prepared to engage in unlawful activity, 'which was the antithesis of the ethical conduct expected of a legal practitioner and which, if discovered, would jeopardise his legal career'.
•Observations by the Court of Appeal on the legal professional privilege claim to the effect that evidence before Magistrate Flynn could properly be characterised as concluding that Mr Rayney committed an offence against the Surveillance Devices Act 1998.[82]
[82] AW v Rayney [2010] WASCA 161.
Mr Rayney agreed that those matters would, in ordinary circumstances, be such as to cause people to fairly conclude based upon those findings that he would not be a fit person to be a lawyer. When it was put to Mr Rayney that those criticisms were such as to have a devastating effect on his prospects of practising law, Mr Rayney replied:
'No, I disagree because my reputation had been well and truly, as a practitioner, destroyed before that time. It's like this. I'm not trying to trivialise it … A man is dead. Someone comes along and shoots a bullet into them. It doesn't matter. The man is dead.'
Mr Rayney accepted that he had continued to practise for some time after 20 September 2007, and again after the dismissal of the appeal against his conviction, but the work he attracted after that time, and the type of clients, were not in the same category as before. He maintained that, after 20 September 2007, his reputation was 'dead'. In relation to his position after he regained his practice certificate following the Court of Appeal decision, he said:
'When I knew I was getting my practising certificate back, I had been to the hearing, I had seen what happened at SAT, I believed I was going to win, in advance of that I spoke to - it was embarrassing but I did it, I spoke to as many practitioners, some friends, some just acquaintances. I had 1000 business cards printed. I gave them out to people. I did what barristers shouldn't have to embarrass themselves to do. I went and sought work. And in the people I spoke to those that were brave enough to tell me didn't say you're not going to get work, Lloyd, because of judgments of the Court of Appeal. They all referred back to the - to people believe you killed your wife. It all related back to that conference. That's the event that changed my life and my practice ... The other events, of course they were terrible to read and to hear about, but it was that [DSS] Lee conference that killed my reputation. That's what people spoke to me about.'
It is, of course, impossible to identify the extent to which expressions of odium and contempt to Mr Rayney after he was charged and tried for his wife's murder, or after other adverse findings or comments were made in the judgment of Magistrate Flynn in relation to legal professional privilege in December 2009, or after the Court of Appeal's decision in relation to that matter published in August 2010, were attributable to those matters or to DSS Lee's defamatory statements. I am confident in concluding, however, that the effect of the defamatory imputation on Mr Rayney's reputation is more likely than not to have continued to be an operative factor in the assessment by members of the public of Mr Rayney's character. In other words, both Mr Rayney's hurt and distress, and the incidents referred to above which occurred after charges were laid in December 2010, were causally linked to DSS Lee's media conference of 20 September 2007, even if not solely caused by that press conference.
Different considerations apply in relation to Mr Rayney's claim for economic loss, a matter I deal with below. (emphasis added)
Economic loss (special damage)
Causation
In relation to the first period (the period shortly after 20 September 2007) in respect of Mr Rayney's claim for damages for economic loss, the judge said that the amount was not disputed and that Mr Rayney should be allowed to recover $70,000.[83]
[83] Primary decision [941]. The amount excludes the GST component of $7,000.
In relation to the second period (20 September 2007 - 17 December 2012), the judge accepted that the defamatory statements caused Mr Rayney to suffer economic loss by way of loss of income for the period from 20 September 2007 (the date of the defamatory statements) up to 8 December 2010 (the date on which Mr Rayney was arrested and charged with his wife's murder). Accordingly, his Honour held that Mr Rayney could recover damages in respect of loss of income between 20 September 2007 - 8 December 2010.[84]
[84] Primary decision [942].
The judge found, however, that the defamatory remarks of 20 September 2007 ceased to be a cause of economic loss after Mr Rayney was charged with murder on 8 December 2010. Thus, his Honour held that Mr Rayney could not recover damages for the remainder of the second period (ie, from 9 December 2010 ‑ 17 December 2012). His Honour said:[85]
I accept the evidence that the effect of DSS Lee's statements on 20 September 2007 was to severely damage Mr Rayney's practice over the next three years. After he was charged in December 2010, a matter which itself would undoubtedly severely impact on his practice, the [Legal Practice Board] took steps to limit Mr Rayney's practice by imposing a condition on his practising certificate. It was that limitation which resulted in Mr Rayney undertaking 'a small amount of work as a solicitor after May 2011' because his work was 'very limited'. I am satisfied that, from the time that Mr Rayney was charged with murder, the defamatory remarks by DSS Lee ceased to be a cause of economic loss. He then became a man facing a charge of, and a trial for, wilful murder and his continued practice as a barrister while that situation persisted was effectively untenable. The operative cause of his reduced work after December 2010 was the fact he was charged with murder and shortly afterwards subjected to a very restrictive condition on his practice certificate. That event broke the chain of causation between the defamatory statements and the reduction in Mr Rayney's capacity to earn income as a barrister. (emphasis added)
[85] Primary decision [942].
In relation to the third period (after 10 February 2016), the judge also found that the defamatory statements of 20 September 2007 ceased to be a cause of economic loss in this period, and that Mr Rayney should not be allowed to recover for the third period.[86] The judge said:[87]
The defendant's case is that, save for the period between the media conference on 20 September 2007 and the murder charge against [Mr Rayney] on 8 December 2010, [Mr Rayney] is not in a different position than he would have been in had the 20 September 2007 media conference not occurred or had it occurred in a more cautious manner. I accept that submission. While I consider that DSS Lee's defamatory remarks continued to be productive of damage to Mr Rayney's personal reputation even after his acquittal and the rejection of the appeal against conviction, I am not satisfied that the residual effect of DSS Lee's remarks was productive of economic loss for Mr Rayney after he regained his practising certificate in 2016, some 8½ years later. In other words, DSS Lee's defamatory statements were not a cause of economic loss after that time. (emphasis added)
[86] Primary decision [938] - [940].
[87] Primary decision [938].
By way of elaboration as to why the defamatory remarks were not causative of economic loss in the period after 10 February 2016, the judge continued:[88]
At the time Mr Rayney regained his practising certificate, there remained outstanding proceedings against him by the LPCC alleging serious unprofessional conduct. He had been away from the practice of law for a number of years. In those intervening years, he had been the subject of criminal proceedings in relation to both murder and the phone intercept charges. Although acquitted on all of those charges, the mere fact of the charges and the publicity surrounding the evidence adduced in relation to them was bound to have resulted in a disinclination on the part of solicitors to brief Mr Rayney. In addition, he had been the subject of adverse comment by Brian Martin AJ and by Magistrate Flynn rejecting aspects of Mr Rayney's evidence in the proceedings before him, and had been unsuccessful in the appeals in relation to Magistrate Flynn's orders. Those matters all raised questions as to Mr Rayney's fitness to practice, and prompted the LPCC to take proceedings, which have received much publicity, for disciplinary action in relation to them. Mr Rayney accepted that the findings against him would, in ordinary circumstances, be such as to lead people to conclude that he would not be a fit person to be a lawyer. I am satisfied that, to the extent that Mr Rayney has had difficulty in re‑establishing his practice since February 2016, it cannot be said that DSS Lee's comments at the press conference in 2007 have been causative of those difficulties, or can be said to have deprived Mr Rayney of income which he would have made had DSS Lee not defamed him in 2007.
Quantification
[88] Primary decision [939].
The judge said that past economic loss should be calculated on the bases that:
1.Mr Rayney's billable rate was $375 per hour for the year ended 30 June 2008.[89]
2.The rate would have increased by $25 per hour up to the period ending 30 June 2011, giving an hourly rate of $400 per hour for the 12 months to 30 June 2009, $425 per hour for the 12 months to 30 June 2010, and $450 per hour for the 12 months to 30 June 2011.[90]
3.Mr Rayney's annual expenses were $104,000 per annum.[91]
[89] Primary decision [947].
[90] Primary decision [959], [961].
[91] Primary decision [946], [962].
In his final orders, made 20 December 2017, the judge awarded $1,249,549 for past economic loss.[92]
Interest
[92] Order 2 of the orders of Chaney J dated 20 December 2017; BB 2.
In the primary decision, the judge said that the parties' experts, and it would seem the parties, had agreed that the rate of interest on 'past loss' should be 6% per annum, and that the dispute was whether interest should be simple interest or compound interest. For the reasons that his Honour gave, the judge said that simple interest was appropriate. His Honour said, with apparent reference to interest on past economic loss, that he would award interest at the rate of 6% per annum from 8 December 2010.[93]
[93] Primary decision [967].
Following delivery of his Honour's reasons, on 20 December 2017, the parties provided competing minutes of proposed orders. With respect to interest on non‑economic loss, the State submitted that the 6% figure should be reduced to 'say 3%' to reflect, in effect, the ongoing injury to feelings and hurt over the whole of the period from the date of the defamatory statement of 20 September 2007 up to the date of judgment.[94] Counsel for Mr Rayney contended, in effect, that the 6% figure was appropriate having regard to the 'immediate, massive effect on his reputation' as at 20 September 2007.[95]
[94] Hearing 20/12/17, ts 5244 - 5245.
[95] Hearing 20/12/17, ts 5239 - 5240, 5248 - 5249.
The judge said with respect to the issue of interest on non‑economic loss:[96]
[H]aving regard to the fact that the damage was as significant as it was at the time of the defamation, I don't think that the approach of adopting 50 per cent of what would otherwise be the rate is appropriate in this case. I acknowledge that that approach when one reads the authorities seems to have been one which is not uncommonly seen. But, in my view, the appropriate approach is to, in effect, assess that there should be interest on two‑thirds of the amount of [sic] putting it another way, interest should run at the rate of 4 per cent per annum from 20 September through until the date of judgment.
[96] Hearing 20/12/17, ts 5251 - 5252.
Accordingly, in his final orders, Mr Rayney was awarded interest for non‑economic loss at the rate of 4% per annum from 20 September 2007 up to the date of judgment.[97]
[97] BB 2.
The matter of interest on economic loss was also raised at the hearing on 20 December 2017 when counsel for Mr Rayney said that it was not apparent from the primary decision why interest on past economic loss should be awarded only from 8 December 2010. The judge responded:[98]
Well, can I deal with that now because whilst as you correctly observe I haven't addressed in detail the rationale for the choice of the date. I did, in fact, give consideration into alternative ways that it might be approached … and I settled upon that date having regard to the possibility of doing it on a rolling basis. And essentially - although I don't want to be adding to my reasons [-] but essentially on the basis that to identify in any reliable way precisely when the losses were ocurred [sic] is difficult, if not impossible, and that having regard to the conclusion that the economic losses accrued by the date that I have identified I consider it as a matter of discretion appropriate to simply adopt that date[.]
[98] Hearing 20/12/17, ts 5243 - 5244.
Interest on past economic loss was accordingly ordered, in the period from 8 December 2010 to judgment, at 6% per annum.[99]
[99] BB 2.
The appeal
Orders sought
Additional Damages
By this appeal, Mr Rayney seeks, in effect, orders that he recover damages for economic loss (Additional Damages) for the periods:[100]
1.9 December 2010 - 22 November 2012; and
2.10 February 2016 - 24 January 2018.
[100] Amended orders wanted, par 2; WB 21.
Mr Rayney seeks orders to the effect that the Additional Damages:
1.be calculated on the following assumptions:[101]
(a)a charge out rate of $450 per hour during the financial year ending 30 June 2011, $475 per hour during the financial year ending 30 June 2012 and $500 per hour in respect of the remainder (ie, from 1 July 2012 onwards);
(b)Mr Rayney would have achieved 2,000 billable hours per year; and
(c)the applicable annual expenses of Mr Rayney were $104,000 per year.
2.be adjusted to take into account, by way of deduction, income that he actually earned and received during the period 9 December 2010 - 22 November 2012 and 10 February 2016 - 24 January 2018, 'such adjustment to be determined by a Registrar unless otherwise agreed by the parties'.[102]
Interest on Additional Damages
[101] Amended orders wanted, par 2; WB 22. The charge out rates referred to here are lower than the rates Mr Barton was instructed to use for the years ended 30 June 2011 and 30 June 2012 (Mr Barton was instructed to use $500 per hour from 1 July 2010), and the billable hours figure is lower than the figure which Mr Barton was instructed to use - 2,300 billable hours per year: [52] ‑ [55] above.
[102] Amended orders wanted, par 2A; WB 21 - 22.
Mr Rayney also seeks interest on the Additional Damages, calculated 'from the dates 30 June 2011, 30 June 2012, 22 November 2012, 30 June 2016, 30 June 2017 and 24 January 2018 in respect of damages awarded in those relevant periods at the rate of 6% per annum until judgment'.[103]
Interest on original award of damages
[103] Amended orders wanted, par 2; WB 21.
Mr Rayney also seeks an order that he be awarded interest on damages for economic loss in relation to the original award of damages (awarded by the judge on 20 December 2017), calculated as follows:[104]
(a)in respect of $39,360, from 22 November 2007 until judgment; and
(b)in respect of the balance of the original award, calculated from the dates 30 June 2008, 30 June 2009, 20 June 2010 and 8 December 2010 in respect of damages awarded in those relevant periods at the rate of 6% per annum until judgment.
The grounds of appeal
[104] Amended orders wanted, par 3; WB 22.
In his amended appellant's case, Mr Rayney's grounds of appeal are to the following effect.[105]
Ground 1
[105] WB 6 - 8.
Ground 1 alleges that the judge:
(a)erred in law by failing to give reasons, or give adequate reasons, for his finding that the defamatory publication was not a cause of Mr Rayney's economic loss 'after 10 February 2016' (the date Mr Rayney was effectively released from his undertaking not to practise); or
(b)alternatively, erred in fact in that the finding was against the evidence.
Ground 2
Ground 2 alleges that the judge:
(a)erred in fact in finding that the murder charge on 8 December 2010 and the restrictive condition placed on Mr Rayney's practising certificate relevantly broke the chain of causation in relation to his claim for economic loss in the period after 8 December 2010 (the date he was charged with murder);
(b)erred in law by failing to provide reasons for rejecting, or failing to have regard to, the evidence of Mr Paul Meyer and Mr Henri Yi‑Jin Chew, 'to the effect that the defamation [of 20 September 2007] caused them as solicitors not [to] brief [Mr Rayney]' after 8 December 2010; and
(c)erred in law by failing to provide reasons for rejecting Mr Rayney's evidence to the effect that he was unable to earn his previous level of income as a barrister despite the reinstatement of his practising certificate on 10 February 2016.
Ground 3
Ground 3 alleges that the judge erred in law in failing to give reasons, or give adequate reasons, for only awarding interest on economic loss from 8 December 2010 onwards.
The State's notice of contention
The State also filed a notice of contention, the details of which are set out later in these reasons. Its effect was to contend that, having regard to normative considerations in relation to causation, Mr Rayney's claim for Additional Damages should be rejected on the basis that he has been found to have engaged in serious professional misconduct and has had his name struck off the roll of practitioners.
The parties' applications to adduce additional evidence
On 22 June 2018, the State filed an application to adduce, as additional evidence in the appeal, the Misconduct Decision, the Penalty Decision, and the orders made by the Tribunal on 25 January 2018 and 18 April 2018 in consequence of those decisions.[106] On 21 August 2020, the State filed an application to adduce, as additional evidence in the appeal, the Court of Appeal's decision dismissing Mr Rayney's appeal against the Misconduct and Penalty Decisions, as well as the Strike‑Off Decision.[107]
[106] Substituted YB 1 - 150.
[107] Substituted YB 151 - 438.
On 25 August 2020, Mr Rayney filed an application to adduce further evidence in the appeal, or alternatively 'into evidence upon any reference for calculation or determination of damages in the event [that Mr Rayney's] appeal is successful'.[108] The evidence comprised, essentially:
[108] Substituted YB 439 - 496; see also appellant's amended reply, pars 51 ‑ 53; WB 139.
1.A further affidavit from Mr Rayney sworn 17 August 2020 concerning his work and ability to earn income as a barrister in the period 8 December 2010 ‑ 22 November 2012, and fees earned in the period 25 July 2017 ‑ 17 January 2018.
2.Redacted bank statements of Mr Rayney in the periods 1 April 2017 ‑ 30 September 2017 and 1 October 2017 ‑ 31 March 2018.
3.A summary table of the transactions shown in the redacted bank statements.
4.An affidavit of Mr Rayney's solicitor, Ms Comley, annexing a further expert report of Mr Dennis Barton, calculating Mr Rayney's damages for economic loss in the period 9 December 2010 ‑ 22 November 2012 and 10 February 2016 ‑ 24 January 2018. In relation to this further evidence, Mr Barton was asked to make certain assumptions, including that in the period 9 December 2010 ‑ 22 November 2012:
(a)Mr Rayney would have achieved 2,000 billable hours per annum, subject to reduction on the basis of points (b) and (c) below;
(b)Mr Rayney would not have worked whilst being held in custody on the murder charge in the period 9 December 2010 ‑ 23 December 2010; and
(c)Mr Rayney would not have worked between 10.00 am and 4.00 pm (alternatively at all) on the dates that he was in court being tried for murder.
Mr Rayney's submissions on the grounds of appeal
Ground 1 (after 10 February 2016)
Ground 1 asserts error in relation to the period 'after 10 February 2016' (the date that Mr Rayney was effectively released from his undertaking not to practise). In particular, ground 1 relates to the period from 10 February 2016 up to 24 January 2018.
Mr Rayney referred to the judge's finding at [841] that 'a plaintiff need only show that the relevant defamatory statement was a cause of his loss, rather than the cause'. Mr Rayney submitted, in effect, that the judge made inconsistent findings on causation, and thereby failed to give reasons, or adequate reasons, for the finding at [938] of the primary decision (referred to in [67] above).[109] The inconsistency was said to arise from the findings as to the continuing effect of the defamation on Mr Rayney's personal reputation referred to at [884], [890] and [892] ‑ [893] of the primary decision.[110]
[109] Appellant's amended submissions, pars 9, 16; WB 11, 13.
[110] Appellant's amended submissions, pars 11 - 15; WB 12 - 13. See also appellant's amended reply, pars 20 ‑ 22; WB 130 - 131.
Mr Rayney submitted that on the findings referred to above, the 'defamation was a causal factor that continued to operate and was not superseded as the sole cause of his economic loss'.[111] Mr Rayney submitted that as the judge had found that the defamatory statement was an actual continuing cause of damage to Mr Rayney's reputation, it was 'therefore also a continuing cause' of Mr Rayney's economic loss.[112]
[111] Appellant's amended submissions, par 18; WB 14, referring to Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 428 - 430.
[112] Appellant's amended reply, par 3; WB 125.
He submitted that the chain of causation could not be severed completely in light of the incidents concerning Mr Rayney which were recounted by the judge at [882] of the primary decision.[113] He submitted that the chain of causation had not been broken for the period during which he had undertaken not to practise (ie, the period 17 December 2012 - 10 February 2016). He submitted, rather, that the chain of causation 'had nothing to operate against' throughout this period. The defamation was 'a cause' of Mr Rayney's economic loss upon him resuming practice in February 2016.[114] Mr Rayney referred to the evidence he gave at trial that, when seeking work after February 2016, he spoke to people who told him that he would not get work because people believed he had killed his wife.[115]
[113] Appellant's amended reply, par 20; WB 130.
[114] Appellant's amended reply, par 5; WB 126.
[115] Appellant's amended reply, par 22; WB 131, referring to 14/03/17 ts 1067 and primary decision [892].
Mr Rayney contended that even if there were no evidence directly linking the defamatory statement to Mr Rayney's economic loss after 8 December 2010 or after 10 February 2016, the 'damage to his reputation and the nature of his profession must inevitably lead to an inference as a matter of common sense and experience that [he] would thereby suffer economic loss, even if there were also other causes'.[116]
[116] Appellant's amended reply, par 23; WB 131.
Mr Rayney also submitted that the judge applied a 'but for' test of causation, rather than the 'common sense' test of causation.[117]
[117] Appellant's amended submissions, par 17; WB 14.
Mr Rayney also submitted that the State should not be allowed to contend in this appeal that the Civil Liability Act 2002 (WA) applied to the question of causation as the point had not been raised at trial.[118] Mr Rayney also contended that, in any event, insofar as the State contends that it should not be responsible for economic loss that occurred at a time in connection with which Mr Rayney was subsequently found not to be fit to earn particular income, the State has misconstrued s 5C of the Civil Liability Act and what is meant by 'appropriate' or 'fair' in that context. Mr Rayney submitted that a defendant must take a plaintiff as he finds him, and Mr Rayney was entitled to practise law throughout this period.[119]
Ground 2 (after 8 December 2010)
[118] Appellant's amended reply, pars 24 - 28; WB 131 - 133.
[119] Appellant's amended reply, par 30; WB 133.
Ground 2 relates to causation in the period after 8 December 2010 (the date that Mr Rayney was charged with murder).
Mr Rayney submitted that the finding at [942] of the primary decision (referred to in [66] above) involved, in the absence of reasons, an implicit rejection of the evidence of Mr Meyer and Mr Chew, neither of whom were cross‑examined, and a rejection of the evidence of Mr Rayney in relation to his inability to obtain similar levels or types of work after February 2016.[120]
[120] Appellant's amended submissions, pars 22 - 26; WB 15 - 16.
Mr Rayney also submitted (albeit under ground 1, rather than ground 2) that the judge's reference to 'the operative cause' in [942] of the primary decision applied the wrong test insofar as it may be read as referring to 'the' cause, rather than 'a' cause.[121]
Ground 3 (interest)
[121] Appellant's amended reply, par 19; WB 130.
Mr Rayney referred to the principles for the award of interest referred to in Haines v Bendall.[122]
[122] Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60, 66, applied in Cardno BSD Pty Ltd v Water Corporation [No 2] [2011] WASCA 161 [162].
Mr Rayney contended that, insofar as the judge's reasons were revealed during oral argument on 20 December 2017 (see [75] above), it appeared that the discretion had not been exercised in accordance with legal principle. As a result, Mr Rayney was not fairly compensated for economic losses that occurred between 20 September 2007 and 8 December 2010. In effect, Mr Rayney submitted, interest was allowed from 8 December 2010 because the judge 'considered it was too difficult to calculate the precise date the losses were incurred, notwithstanding the fact that the losses were calculated by the parties' experts on a post‑tax basis (with the losses therefore being calculated as accruing at the end of each financial year)'.[123]
[123] Appellant's amended submissions, pars 32 - 35; WB 17 - 18.
Mr Rayney contended that the judge should have exercised his discretion by awarding interest on economic losses found to have been sustained in respect of each relevant financial year, either (1) calculated by reference to the mid‑point of each portion of the financial year in respect of which the economic loss was claimed, or (2) calculated from the end of each financial year (save for the $70,000 write off, which has a precise date).[124]
The State's submissions on the grounds of appeal
Grounds 1 and 2
[124] Appellant's amended submissions, par 36; WB 18.
The State contended, in effect, that the judge was correct for the reasons he gave.
The State also submitted that the Civil Liability Act applied to Mr Rayney's claim and that, pursuant to s 5C and s 5D of that statute, the onus was on Mr Rayney to prove, on the balance of probabilities, that the reduction in his earning capacity was caused by the press conference of 20 September 2007. In relation to ground 1, s 5C(1) required proof both that (1) the fault was a 'necessary condition' of the reduction in his earning capacity after February 2016, and (2) that it is appropriate for the scope of the State's liability to extend to that reduction.[125]
[125] Respondent's written submissions, pars 53 - 55; WB 57 ‑ 58.
As to the second of those elements, the State submitted that it invites attention to policy considerations, including whether the harm alleged ought fairly be regarded as a consequence of the tortious conduct.[126] The State submitted that those policy or normative considerations include, but are not confined to, whether there is some supervening event responsible for the particular damage claimed.[127]
Ground 3 (interest)
[126] Respondent's written submissions, par 56; WB 58 - 59, referring to Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [23] - [24]; Hudson Investment Group Ltd v Atanaskovic [2014] NSWCA 255; (2014) 311 ALR 290 [103].
[127] Respondent's written submissions, par 57; WB 59, referring to March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 531 (McHugh J); Perry v Australian Rail Track Corp Ltd [2013] NSWSC 714; (2013) 64 MVR 121 [152].
The State submitted that the judge's supplementary oral reasons on 20 December 2017 (see [75] above) sufficiently explained the basis upon which his discretion was exercised in relation to interest.[128]
[128] Respondent's written submissions, pars 76 - 77; WB 65.
The State submitted that the process of determining interest should not be permitted to assume an importance incommensurate with its relative effect upon the total sum for which judgment is given, and that it should be dealt with in a broad way.[129]
[129] Respondent's written submissions, par 79; WB 65 - 66, referring to Fire & All Risks Insurance Co Ltd v Callinan [1978] HCA 31; (1978) 140 CLR 427, 432 ‑ 433.
The State submitted that the judge's decision to award damages from the date at which the economic loss was cut off, being 8 December 2010, rather than calculating interest to run from either the mid‑point or end of each financial year in which the loss was suffered, was within the boundaries of discretion, given that:[130]
1.There was an inherent difficulty in calculating Mr Rayney's economic loss in any one year.
2.Any reduction in the amount of interest attributable to the reference date of 8 December 2010 was more than offset by the fact that Mr Rayney obtained the benefit of a 6% per annum interest rate. In the ordinary course, where loss occurs over a period of time, as with lost earnings, the appropriate formula is to award interest from the date of injury, but to halve the interest rate to accommodate the incremental nature of loss over time.[131] That approach recognises that the loss of earnings does not occur at the date of injury, and occurs gradually over time until judgment.[132]
3.Had the judge determined to award interest from 20 September 2007 to the date of judgment at 3% per annum in the usual way, Mr Rayney would have been awarded approximately $384,236, which is $143,450 less than the amount of interest actually awarded.
[130] Respondent's written submissions, pars 80 - 84; WB 66 - 67.
[131] Referring to Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402, 423 [90]; Riddle v McPherson (1995) 37 NSWLR 338, 342.
[132] Referring to Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1, 19.
The State, in oral submissions, also submitted, in effect, that the selection of 8 December 2010 was an appropriate date for the commencement of interest on past economic loss because other considerations, such as vicissitudes, including vicissitudes which would have operated otherwise to reduce the total amount awarded for economic loss.[133]
[133] Appeal ts 173.
The evidence relied on by Mr Rayney in support of grounds 1 and 2
Ground 1 (after 10 February 2016)
In his 'Appellant's Amended Schedule of Evidence' (Appellant's Schedule), Mr Rayney contended that the finding that the defamatory statement of 20 September 2007 was not a cause of economic loss after 10 February 2016 was not supported by the following evidence.[134] First, he referred to his own witness statement, pars 1743, 1751 ‑ 1776:
[134] WB 24 - 32.
1743.Since being issued with a practising certificate and from February 2016 to date, I have undertaken a small amount of work each month.
…
1751.The SAT decision permitting me to have a practising certificate and continue to work as a barrister was handed down in February 2016.
1752.I expected to be successful in those proceedings which were heard in about September 2015.
1753.In anticipation of that success I told friends of mine who were lawyers that I anticipated being able to resume practising as a barrister and that I would be rightful to receive briefs or referrals of work from them.
1754.I told me [sic] friends this in late 2015. After the SAT decision was delivered I told these friends of the result and that I was now able to accept briefs.
1755.As well, I made a point of telling as many lawyers with whom I was acquainted (but who were not my friends) that a recent SAT decision meant I could resume practising as a barrister. I invited these lawyers to brief me or refer work to me.
1756.Prior to September 2007 I would have never needed to work by asking others to brief me. I always had ample work and, in fact, often turn[ed] work away because I was fully committed.
1757.After the SAT decision was delivered I also spoke to barristers who were appointed as silk specifically telling them that I would be happy to junior them in court or research and draft any opinions.
1758.Whilst many of the lawyers to whom I spoke said that they would help me, very little work came about from any of those requests of assistance made by me.
1759.Prior to September 2007 I was very happy to have a low public profile as I went about my business practising as a barrister. I did not need to advertise myself or seek work.
1760.I had a business card but did not need to often provide it to people, apart from giving it to existing clients who wanted my details.
1761.Since being able to practice in February 2016, I printed more than a thousand business cards. I have handed out several hundred since that date with the vast majority being given to potential clients, solicitors who may wish to brief me and barristers who may wish to refer work to me.
1762.I did not enjoy having to 'advertise' my services in this way but I was very conscious of the fact that I no longer enjoyed the reputation I once had and no longer had clients and solicitors seeking to brief me.
…
1763.Almost all of the work I carried out as a barrister has come from clients seeking me through word of mouth.
1764.A far greater proportion of work that I now do is in criminal law than I did before September 2007.
1765.Since February 2016 almost all of my briefs are for persons accused of committing criminal offences.
1766.I do not expect to prosecute by the State or Commonwealth.
1767.The vast majority of my criminal law clients are charged with drug offences and in particular with the possession or sale of methylamphetamine.
1768.This may have come about because my first trial since being able to practice in February 2016 was in the defence of a man charged with possession [of] methylamphetamine with intent to sell or supply. He was acquitted on a successful no case to answer submission. That result received much media publicity and, since that publicity, other persons charged with methylamphetamine offences have sought my representation.
1769.Many potential criminal law clients have sought my assistance but were unable to pay my fees and some were unable to pay any part of my fees.
1770.As a consequence, I have undertaken trials for clients who are funded by legal aid or for some clients who are unable to obtain legal aid, have accepted their work on the basis that I will charge my fees at the legal aid rates.
1771.The legal aid rates are approximately $1,200 per day for appearing in District Court and Supreme Court trials. This rate is significantly lower than the rate I currently seek to charge.
1772.The legal aid rate for appearing in Magistrates Court trials is even less.
1773.Prior to September 2007 I enjoyed appearing in [the] Supreme Court in trials, single judge appeals and at Court of Appeal hearings. Since February 2016 I have not received any briefs for Supreme Court work.
1774.I have received some enquiries about Supreme Court briefs but not actually been briefed. Most of my work is now in the Magistrates Court.
1775.I have not received any commercial law briefs. Prior to September 2007 I believed most of my earnings were obtained from non‑criminal law work.
1776.Since February 2016 I received many requests from members of the public for me to act for them, or members of their family, in criminal law cases but seeking my representation without the payment of any fees.
Secondly, he referred to his evidence in cross‑examination on 14 March 2017 at ts 1067, where he said, in effect, that, in his opinion, his reputation was 'dead' as a consequence of the defamatory statement of 20 September 2007.
Thirdly, he referred to the witness statement of Ms Black (a friend and bridge‑partner of Mr Rayney, and a barrister), par 37,[135] where she said, albeit without reference to any particular period of time after 20 September 2007:
I spoke to many solicitors to ask them if they would keep sending work to [Mr Rayney]. Most wanted to help but they felt they couldn't do that for a range of reasons but all in the end came back to the fact that he was being tried in the court of public opinion for killing his wife.
[135] GB 709.
Fourthly, he referred to Mr Meyer's witness statement, particularly at pars 34 - 35.[136] Mr Meyer said:
33.Following Lee's statement, I recall wanting to brief [Mr Rayney] on three matters. I approached my clients and told them that I was looking to brief a barrister who was very experienced and 'worth the money'. However, once I told them it was [Mr Rayney] I was looking to brief, they refused.
34.As recently as two months before the date of this statement [16 March 2017], I planned to brief [Mr Rayney] on another matter however, when the client became aware that it was [Mr Rayney] I was looking to brief, they refused.
35.The reasons given by the clients included their concern that if a juror recognised [Mr Rayney], their case could be prejudiced in some way.
[136] GB 731 - 732.
Mr Rayney's application to adduce further evidence
[254] BB 2.
[255] Cullen v Trappell (19); Watts v Turpin [90]; Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [211] ‑ [212], [240].
Mr Rayney's application to adduce additional evidence is referred to in [87] above. It is unnecessary to consider whether the evidence sought to be adduced would be admissible if grounds 1 and 2 of the appeal had succeeded. Those grounds have failed, and there is no basis to admit the evidence in light of the dismissal of grounds 1 and 2 and also in light of the conclusion on ground 3 referred to above.
Mr Rayney's application in an appeal filed 25 August 2020 should be dismissed.
Conclusion
The appeal should be allowed in part as to ground 3.
The State's notice of contention
The notice of contention
The State filed a notice of contention (as amended), with reference to the Misconduct Decision and the Penalty Decision, and Mr Rayney's subsequent removal from the roll of practitioners (see [39] ‑ [43] above) in the following terms:[256]
[256] Substituted YB 438E - 438F.
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] lacks 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;
(ci)on 2 August 2019, Mr Rayney's appeals from [the Tribunal's] findings and recommendation were dismissed, and on 21 April 2020, Mr Rayney was removed from the Roll of Practitioners; 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 that 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 a consequence of the press conference.
The State's submissions
The State contended that that Mr Rayney claimed damages for his inability to practise law for a period during which, on the Tribunal's findings, he was not a fit and proper person to do so. The State submitted that, given that the assessment of special damage proceeds upon an assessment of a hypothetical scenario (ie, what would have occurred in the absence of the defamation), it is appropriate that the 'hypothetical assessment be made on the basis that [Mr Rayney] was practising in circumstances in which he was not a fit and proper person to do so'.[257]
[257] Respondent's written submissions, pars 97 - 98; WB 70.
The State contended that the normative considerations relevant to a finding of causation both at common law and under the Civil Liability Act, take on a particular significance. The State contended that where the only reason that Mr Rayney would (in the absence of the tortious conduct) have been able to earn income as a lawyer was that 'his own conduct rendering him unfit to do so had not yet been identified and dealt with by the relevant authorities', his loss of that earning capacity ought not fairly be regarded as a consequence of the tortious conduct. The State submitted that legal policy should prevent such loss of income being attributed to the tortious conduct.[258]
[258] Respondent's written submissions, pars 99 - 100; WB 71.
The State submitted that this proposition had particular force in circumstances where (1) the misconduct proceedings were on foot in the period after 10 February 2016, (2) Mr Rayney had repeated his false evidence before the Tribunal and the Supreme Court, and (3) the alleged conduct was found by the judge to have 'raised questions' as to Mr Rayney's fitness to practise. It submitted that a fortiori the resolution of those questions, adverse to Mr Rayney's fitness to practise, provide additional grounds for upholding the judge's decision.[259]
[259] Respondent's written submissions, par 101; WB 71.
In its oral submissions, the State raised further matters which were not the subject of its written submissions. The State contended, in effect, that:[260]
[260] Appeal ts 129 - 131, 137 - 154.
1.The High Court has held that the court does not take into account unlawful conduct in assessing the prospect of a hypothetical loss - with reference to Talacko v Talacko.[261]
2.Consistently with r 50(2) of the Legal Profession Conduct Rules 2010 (WA), Mr Rayney should have disclosed to the Legal Practice Board that he had intentionally misled a court in 2009.
3.Mr Rayney failed to do so on applications for renewal of his practising certificate and on other relevant occasions, including in the context of the letter from the Legal Practice Board dated 11 February 2011.[262]
4.Had Mr Rayney made proper disclosure, he would not have obtained a practising certificate for some or all of the periods in which he claims Additional Damages.
5.In this context:[263]
The further evidence [referred to in the notice of contention] shows that [Mr Rayney] intentionally misled a court in an affidavit in 2009. He should have disclosed that according to that finding when he was corresponding with the Legal Practice Board in February 2011. Had he done so, he would not have got a practice certificate because - and you can't take that into account - the fact that he would have got a practice certificate if - because it's unlawful conduct according to the rule that I've just mentioned in Talacko's case.
Mr Rayney's submissions on the notice of contention and the State's application to adduce additional evidence
[261] Talacko v Talacko [2021] HCA 15; (2021) 95 ALJR 417 [51].
[262] GB 1957.
[263] Appeal ts 129.
Mr Rayney provided written submissions in response to the State's written submissions, but he had apparently not been given prior notice of the matters raised by the State in oral submissions referred to in the preceding paragraph. Mr Rayney's written submissions were to the following effect.
Mr Rayney submitted that the Misconduct Decision and the Penalty Decision, and the Tribunal's orders pursuant thereto, are irrelevant. The only relevant comparison to be made is between Mr Rayney's earning capacity following the defamatory publication versus his earning capacity in the hypothetical scenario of there being no defamatory publication.[264]
[264] Appellant's amended reply, pars 37 - 38; WB 135 - 136.
Mr Rayney submitted, in effect, that the court should refuse the State's application to adduce additional evidence in relation to the Misconduct Decision, the Penalty Decision, and the Strike‑Off Decision, on the following bases:[265]
1.The evidence 'bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made'.[266] Further, he referred to Thomas v Bass,[267] in which it was said that, as a general rule, 'evidence of events which occur following the trial which amount to the realisation of a specific contingency will not be admitted in an appeal from a lump sum based upon the facts known at the date of the trial where the fresh evidence is of events which occurred following the trial and was the realisation of a specific contingency which the court allowed for or made a discount for'.[268]
2.The evidence is irrelevant given that Mr Rayney does not seek damages beyond 24 January 2018.
3.There were non-publication orders in the professional misconduct proceedings, which had the effect of minimising publicity.[269] Insofar as the professional misconduct proceedings or the Misconduct Decision affected Mr Rayney's loss of earning capacity, this could only have occurred when the suppression orders were lifted and the decisions published on 14 May 2018.[270]
4.The only relevant hypothetical scenario is the one where the defamation had not occurred. Mr Rayney should not be deprived of the substance of his remedy merely because the words might have been published in circumstances where (with the benefit of a subsequent finding) he was, at that time, not considered to be a fit and proper person to practise law. Reference was made to the following passage from Gatley on Libel and Slander:[271]
'Factual causation' of damage is no doubt a necessary part of establishing a claim for substantial damages for libel and that involves a hypothetical question of what would have happened if the defendant had not published the defamatory words, but a claimant is not to be deprived of the substance of his remedy merely because the words might have been published by others or in circumstances in which there would have been a defence to a claim.
[265] Appellant's amended reply, pars 41 - 50; WB 136 - 138.
[266] Referring to Mulholland v Mitchell [1971] AC 666, 679 ‑ 680.
[267] Thomas v Bass [2006] WASCA 59.
[268] Thomas [45].
[269] Legal Profession Complaints Committee and Rayney [No 2] [2018] WASAT 5 (S) [130].
[270] Appellant's amended reply, pars 44 - 45; WB 137.
[271] Alastair Mullis & Richard Parkes QC (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd) (12th ed, 2013) [9.4] fn 50.
Mr Rayney also repeated his submissions in respect of causation and the application of the Civil Liability Act.
In reply to the State's oral submissions, counsel for Mr Rayney submitted that Talacko had no relevant application. He also emphasised that Mr Rayney's entitlement to practise after 10 February 2016 arose from orders made by the Tribunal to that effect on 10 February 2016. Counsel for Mr Rayney also contended, in effect, that questions of fact not addressed in the evidence before the primary judge or this court might arise in relation to the allegation that Mr Rayney failed to make disclosures during renewals of his practising certificate, and that this point ought not be permitted to be raised in the appeal.[272] He emphasised that the order removing Mr Rayney's name from the roll operated prospectively, not retrospectively.[273]
Disposition
[272] Appeal ts 178 - 188.
[273] Appeal ts 81, 87.
It is unnecessary to deal with the notice of contention in light of the dismissal of grounds 1 and 2 of the appeal. Nor, in our view, is it appropriate to do so having regard to the following matters.
An appeal to this court is by way of rehearing.[274] This means that, unlike in the case of an appeal in the strict sense, this court can substitute its own decision based on the facts and law as they stand at the time of the appeal.[275]
[274] Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). Also r 47(3)(d) of the Court of Appeal Rules provides, in effect, that a single judge has jurisdiction to make an order relating to the admission of additional evidence, either before or at the hearing of the appeal, by the Court of Appeal.
[275] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
In Saunders v The Public Trustee,[276] this court referred to the power to receive additional evidence in an appeal and made the following observations:[277]
It may be that the source of the statutory discretion is better understood as being inherent in the provision by r 25 for an appeal to be by way of rehearing. On that view, r 47(3)(d) would empower a single judge to make case management directions in relation to the admission of evidence, for the purposes of s 61(1) of the Supreme Court Act. However, whatever the source of the power, the existence of the court's power to admit additional evidence is well established.
In deciding whether to allow an applicant to adduce additional evidence on an appeal against a final decision made after trial, the strong public interest in the finality of litigation will be an important consideration. That public policy provides a powerful reason for strictly confining the circumstances in which a party on appeal will be allowed to augment the evidence led at trial. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial.
Another important consideration will be whether the additional evidence is properly characterised as fresh evidence which either did not exist at the time of the trial or which could not have been discovered with reasonable diligence at that time. Generally, the discretion will be exercised against admitting evidence which is not fresh in this sense, particularly where the evidence has been deliberately withheld at trial.
It will also be relevant to consider the strength of the evidence, whether it is contested and whether there is a significant possibility that the evidence would lead to a different result if admitted. If evidence is contested and would require a new trial to resolve factual disputes if it were admitted, then that will be a factor counting against its admission in the appeal.
Ultimately the question is whether it is in the interests of justice to admit the additional evidence, having regard to the above considerations. (footnotes omitted)
[276] Saunders v The Public Trustee [2015] WASCA 203.
[277] Saunders [86] - [90].
One factor which will tend to bear negatively upon the reception of fresh evidence is where it falls within a field or area of uncertainty in which the trial court has already made an estimate or made an allowance by way of contingency.[278] Where no allowance is made for the contingency the realisation of which has only emerged following the judgment at trial, that is a matter weighing in favour of the reception of the fresh evidence.[279]
[278] Doherty v Liverpool District Hospital (1991) 22 NSWLR 284, 295, 297; Mulholland (679 ‑ 680); Thomas [44] ‑ [45].
[279] Spargo (17 - 20).
The disciplinary proceedings which led to the Misconduct Decision and the Penalty Decision were referred to in passing by the judge in the primary decision at [935], but his Honour made no allowance for the contingency that Mr Rayney might be found to have engaged in professional misconduct and was unfit to practise. His Honour made allowance for other vicissitudes, but did not direct his attention to this one.[280]
[280] Primary decision [947], [963] - [966].
Had Mr Rayney claimed damages in this appeal on the basis that his lost earning capacity went beyond the date that he was removed from the roll of practitioners, the court would have power to receive the evidence referred to in the State's notice of contention, and that power would properly be exercisable in favour of the reception of the evidence. That is because in an appeal on causation, it would be contrary to the interests of justice to decide the issue of causation without regard to such evidence. The evidence of his removal from the roll of practitioners under s 444 of the LP Act[281] is fresh evidence, uncontroverted and uncontroversial, for which no allowance was made in the primary decision. It may even be evidence of which this court could properly take judicial notice in any event. It would be an absurd result if, hypothetically, Mr Rayney were to obtain orders from this court to the effect that the defamatory statement of 20 September 2007 continued to be a cause of economic loss in his capacity as a barrister for years beyond the date his name was removed from the roll of practitioners by the Full Bench.
[281] Section 444 of the LP Act provides, in effect, that if the Tribunal, under s 438(2)(a), makes and transmits a report in respect of a practitioner to the Supreme Court (Full Bench), the report is taken to be conclusive as to all facts and findings mentioned or contained in the report, and the Supreme Court may, upon motion and upon reading the report, and without any further evidence, order the removal from the roll of the name of the practitioner.
Nevertheless, it is to be emphasised that Mr Rayney is not, in this appeal, seeking economic loss beyond 24 January 2018, being the day before the Misconduct Decision was handed down. The question of the reception of the evidence referred to by the State in its notice of contention ultimately turns upon whether, in this context, it is relevant to the disposition of the appeal.
In Wilkinson, Dixon J said:[282]
The general rule of law prevents a party from relying upon his own unlawful conduct as a foundation for the assertion of rights. In its application to defamation the rule makes it impossible for the party defamed to recover when the defamatory character of the publication complained of consists only in reflections upon his skill, fitness or competence in a business or avocation which he carries on unlawfully, or in the imputation of conduct which is inconsistent with the proper discharge of his duties but is not otherwise reprehensible. In such a case, he must set up the illegality in order to complete his cause of action; or stated in another, or perhaps better, way, the only reputation which he seeks to protect from disparagement is dependent upon or arises from an illegal course of conduct.
[282] Wilkinson (375 - 376).
Also in Wilkinson, Rich J observed:[283]
The plea of illegality is not allowed in the interests of either party but arises from the necessity of vindicating the law in the general interest.
[283] Wilkinson (371).
The recovery of damages in the primary proceedings for economic loss after 8 December 2010 depended upon proof by Mr Rayney, as a necessary but not sufficient condition, that he would have continued to practise as a barrister in the provision of legal services to members of the public after that date. In this court, his contention remains that, on the evidence before the primary judge, he had established proof of the facts which would entitle him to damages for economic loss after 8 December 2010.
Had the fact been that all of the matters upon which the Full Bench concluded that Mr Rayney was unfit to practise occurred prior to 8 December 2010, as a preliminary view, it would be contrary to public policy for him to recover substantial damages for lost earning capacity as a barrister after 8 December 2010.[284] On this assumption, even though those events did not become known to the Supreme Court (under whose supervisory jurisdiction Mr Rayney came) until well after 8 December 2010, it would essentially be an accident of timing that saved him from being struck off prior to 8 December 2010. Had the facts accepted by the Full Bench as demonstrating his unfitness to practise been fully known to the Supreme Court by 8 December 2010, he would have been struck off then. On this assumption, even though Mr Rayney was properly entitled to defend the disciplinary proceedings, the (unsuccessful) defence of the disciplinary proceedings would not alter the fact that, as from a date prior to 8 December 2010, he was unfit to practise as a barrister.
[284] The claim for Additional Damages is $1,741,914 plus interest of $620,852: Mr Barton's report dated 24 August 2020, pars 5.2.2 - 5.2.3; Substituted YB 470 ‑ 471.
Accordingly, as a preliminary view, although not in terms covered by the decision in Wilkinson, at least on one view the preclusion of recovery of damages for economic loss in this context would be consistent with the purpose of the public policy exception in Wilkinson. Mr Rayney's proof of economic loss would depend, at bottom, on acceptance of the proposition that he was fit to practise as a barrister and earn the high rewards which were evidently available to him on that account, when the evidence (on the above assumption) would indicate that he clearly was not fit to practise. The financial rewards from practise as a barrister may be significant but at the core of the barrister's professional life lies the duty owed to the court in furtherance of the administration of justice.[285] Whilst disqualification from practice is prospective, not retrospective, it is ultimately for the protection of the public.[286] There is, at least arguably, some incongruity in recognising that a barrister's misconduct was ultimately found to be sufficient to warrant a conclusion of unfitness to practise and disqualification from practice for the protection of the public and, at the same time, provide damages for economic loss in respect of hypothetical legal services provided to members of the public in the period after the misconduct and up to the date that it was exposed and appropriately dealt with. The law's concern in this regard would not be to protect the interests of the defendant tortfeasor, nor to punish the plaintiff, but, rather, with coherency in and respect for the administration of justice in which barristers are called to play an essential part.[287]
[285] D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [111].
[286] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [188], [212].
[287] Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286, 298; D'Orta‑Ekenaike [104], [106]. In his address upon taking the oath of office as Chief Justice of Australia on 21 April 1952, Sir Owen Dixon referred to the Bar occupying 'an essential part in the administration of justice' and that the barrister, practising with the 'very high tradition of honour and independence of the Bar', made a 'greater contribution to justice than the judge himself': (1952) 85 CLR xi ‑ xii.
The views expressed in [234] ‑ [235] above are preliminary views for this reason. The events relied upon by the Full Bench in determining that Mr Rayney was unfit to practise as a barrister and should be struck off did not all occur by 8 December 2010.[288] The Full Bench canvassed the facts and matters contained in the Penalty Decision in detail, including events and matters occurring after 8 December 2010.[289] The matters beyond 8 December 2010, to which the Tribunal in the Penalty Decision and the Full Bench in the Strike‑Off Decision had regard, were that:
[288] The misconduct prior to 8 December 2010 comprised the matters referred to in par 1(a) of the notice of contention: see [214] above.
[289] Legal Professional Complaints Committee v Rayney [2020] WASC 131 [10] - [35], [37] ‑ [40], [46].
1.Mr Rayney showed no remorse or insight.
2.Mr Rayney's misconduct prior to 8 December 2010 was not an isolated matter.
3.Mr Rayney knowingly gave false evidence in:
(a)proceedings concerning the Legal Practice Board in the Tribunal in 2015;
(b)the defamation proceedings (the subject of this appeal) in 2017; and
(c)the disciplinary proceedings before the Tribunal in December 2017.
Paragraph 1(c) of the State's notice of contention is incorrect. Further, there is no decision of the Full Bench to the effect that Mr Rayney's misconduct prior to 8 December 2010 would itself have resulted in him being struck off. Fitness to practise for the purpose of disciplinary orders in the case of professional misconduct is to be determined at the time of the relevant hearing, and not at the time of the misconduct.[290]
[290] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21]; Khosa [195].
It may be accepted that, even considered in isolation, Mr Rayney's misconduct prior to 8 December 2010 would likely have been sufficient to justify his removal from the roll of practitioners, as opposed to a period of suspension. However, in the absence of a formal finding of unfitness to practise in that regard by the Full Bench exercising its supervisory jurisdiction, it is arguable that the policy consideration referred to in [234] - [235] above is not so readily, or at least not so directly, engaged. That is particularly so when regard is had to the matters conventionally bearing upon damages for defamation referred to in [162] ‑ [163] above.
In the circumstances, and given that the development of public policy involving a restriction on an award of damages is a serious step, and given that the result would, in any event, be obiter in this appeal, in our view it is not appropriate to reach a concluded view on the notice of contention. The different way in which the State's case emerged on its notice of contention late in oral submissions, in the absence of prior notice to Mr Rayney, tends to support that conclusion.
Conclusion
The orders should include:
1.Mr Rayney's application in an appeal filed 25 August 2020 is dismissed.
2.The State's applications in an appeal filed 22 June 2018 and 21 August 2020 are dismissed.
3.The appeal is allowed in part.
Counsel should be heard in relation to the precise orders to be made in relation to allowing the appeal in part and in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
12 APRIL 2022
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