Rossiter v Davies

[1995] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No A21 of 1995
  Adelaide

B e t w e e n -

JAMES ROSSITER

Applicant

and

DR GLYN DAVIES and THE ST JOHN AMBULANCE AUSTRALIA (SOUTH AUSTRALIA INC)

Respondent

Application for special leave to appeal

DEANE J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 21 AUGUST 1995, AT 3.14 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with MR P.J. THATCHER, for the applicant.  (instructed by Knox & Hargrave)

MR M.E. HOILE:   May it please the Court, I appear for the respondent.  (instructed by Thomsons)

MR TILMOUTH:   If the Court please, the applicant was accused of manifestly improper conduct and the particulars of that allegation by the first respondent, the respondent generally, were that he improperly appeared before the Industrial Commission when that Commission was considering an award between ‑ ‑ ‑

DEANE J:   Mr Tilmouth, you can assume that we have carefully read the material before us.

MR TILMOUTH:   If the Court pleases, your Honours would have read then that unlike the trial judge, the Full Court accepted that there was no basis for the allegation of manifest impropriety, and that appears at page 40 and 41 of the application book, and if I could just read small portions of those pages to isolate the key passages.  At page 40, Justice Olsson, speaking for the Full Court, noted at line 25 that:

There seems little doubt that the activities of the appellant and the other intervener volunteers incurred the considerable displeasure, if not anger, of the respondent Davies, who appears to have perceived their actions as usurping his authority and defying the edict contained in the final paragraph of his Special Routine Order published on 17 August 1983.  However, it seems clear that he did not ever read any of the Industrial Commission transcript, although it was readily available to him, and merely relied upon a verbal report of the executive administrator as to what had occurred.  Oddly enough, his attitude, at the general time, seems to have been somewhat ambivalent.

And the point to be made about that, if the Court pleases, is that the applicant was disciplined without the first respondent holding any sort of perfunctory inquiry at all.  The second error, in my submission, is exposed by the Full Court at page 41, line 11, where Justice Olsson continues:

I digress to comment that this was, in my view, a quite unwarranted assumption or conclusion.  Despite what was contended on this appeal, it seems to me that a fair reading of the relevant transcripts and of the decision of Cotton C renders it quite apparent that the appellant purported only to express his own, personal views and that his submissions were in fact received by the Commission in that sense.

Now, if the Court pleases, what all that means, in my submission, is that he has been found guilty of manifestly improper conduct.  He was a professional man.  That allegation severely tarnished his reputation.  He sought to recover that reputation.  In the event, not only was it demonstrated to the satisfaction of the Full Court that there was not any basic inquiry at all, there was just a jumping to conclusions on the basis of some received knowledge but, more importantly, as Justice Olsson demonstrates in the passage I have just read, in fact the allegation was quite unfounded.

Now, in my submission, the error which justifies a grant of special leave is the Full Court in thinking, along with the trial judge, that the requirement of natural justice only went to furnishing a right to be heard - and Justice Olsson found so much at line 17 on page 50 - in my submission, the content of the requirement of natural justice was far more reaching than that.  It involved at least some kind of fair inquiry and it required as well some kind of conclusion upon making that fair inquiry, rather than just relying on a report, and more importantly, if the Court pleases, it required a determination as to whether or not the facts upon which the allegations were based had some kind of substance to it, and none of those requirements were satisfied in this case.

DEANE J:   Except the matter below really ultimately turned on the matters set out pages 50, 51 and 52.

MR TILMOUTH:   They did, on the discretionary issues and, if the Court pleases, what I would submit about those is this.

DEANE J:   Well, I mean, just take one of them, Mr Tilmouth.  Take the second paragraph on page 51.  In a case such as this, really, I am not trying to brow-beat you or anything, but it is very hard to say much about that in this sort of case.

MR TILMOUTH:   Well, could I say this, if the Court pleases?  On “gross delay”, which is line 5 of that passage, the applicant did no more than pursue other alternative forms of remedies internally, and it is always a very important principle of discretionary judgments, as declarations are, to exhaust those remedies.  That is the answer there.  Second, if the Court pleases, he did not resign - line 9.  That submission was abandoned by my learned friend Mr Hoile.  What happened is, to put it very generally ‑ ‑ ‑

DEANE J:   Well, it was the first part I was particularly drawing your attention to.

MR TILMOUTH:   Yes, and as to the academic nature of the discretion, line 9, as well, it was academic in the sense that because in 1990 there was a restructuring and the applicant was no longer a member, so his entitlements could not be accrued any more and so on, but it was not academic to restore his reputation to demonstrate that what had been found against him was totally unfounded, and that is my answer, if the Court pleases, to that point.  In essence, if the Court pleases, in general answer to page 51, in my submission the answer is in Ainsworth & Anor v Criminal Justice Commission, where this Court has held that reputation is an interest which merits the protection of the rules of natural justice.

Justice Brennan’s judgment went further in that case to talk of reputation not merely as professional or business, but also in the sense it is understood in the law of defamation, a downgrading of reputation and, more importantly, in that case, if the Court pleases, this Court recognised that it would be regrettable - referring to a House of Lords decision - if somebody came to the Court and established that they were legally wrong, but could not find a remedy, and that really is the gravamen of this application.  The Full Court has found that the original basis of the allegation was wrong.  There was no hearing in the requisite sense at all and, in my submission, given that reputation is still at stake, things like him no longer being a member are quite beside the point.

The special leave point, if the Court pleases, is that the content of the principles of natural justice go well beyond merely the procedural requirement to giving an opportunity to explain or to answer.  They go more fundamentally to the nature of the process itself, the basic fact finding at first instance, and they require as well that the person making the allegation, or the tribunal, at least do something in order to try and ensure that the allegations are substantiated, and none of those things happened in this case.  They are the matters we would seek leave to argue as special leave matters.

If the Court pleases, I can put it no stronger than that but, in my submission, for those reasons, this case is one deserving special leave to appeal.

DEANE J:   Thank you, Mr Tilmouth.  The Court need not trouble you, Mr Hoile.

The Court considers that in all the circumstances of this case, including the delay in instituting proceedings, an appeal would not enjoy

sufficient prospect of success to warrant a grant of special leave.  Accordingly the application for special leave to appeal is refused.

MR HOILE:   May I ask for costs?

DEANE J:   Mr Tilmouth, there is nothing you can say, is there?

MR TILMOUTH:   No, if the Court pleases.

DEANE J:   The application is refused with costs.

AT 3.24 PM THE MATTER WAS CONCLUDED