Rowan v Cornwall (No 5)
[2002] SASC 160
•21 June 2002
ROWAN v CORNWALL & ORS (No.5)
[2002] SASC 160
In the Civil Jurisdiction
CONTENTS
Paragraph No.
The Allegations 2
The State Defendants 7
The Commonwealth Defendants 9
The Other Defendants 10
The Plaintiff’s Causes of Action 11
Dramatis personae 18
(1) The Plaintiff 19
Her background
Her high public profile
(2) The Staff and Management of Christies Beach 27
(3) The Minister and the Department 29
(4) The Review Committee 36
(5) The Commonwealth Ministers 43
The Witnesses 44
(1) The Plaintiff’s Evidence 46
(2) The Plaintiff’s Witnesses 47
(3) Dr Cornwall 51
(4) The Review Committee 53
(5) The Department’s Witnesses 58
(6) Other Defence Witnesses 60
The Failure to Call Ms Heath 65
Animosity to the Plaintiff 69
Missing Documents 87
Parliamentary Privilege 98
The Structure of these Reasons 116
WOMEN’S SHELTERS AND THEIR FUNDING
Women’s Shelters 118
The Christies Beach Women’s Shelter 121
The Shelter’s Premises 128
Funding for Women’s Shelters before 1985 131
The SAAP Program 144
Administration of the SAAP Program 149
Opposition to the SAAP Program 153
Dr Cornwall Becomes Minister 155
EVENTS LEADING TO THE REVIEW
The Political Activity of the Shelters 156
The Undertaking 159
Opposition to the Undertaking 164
SAAP Expansion Funds and Judith House 180
The Issues in October 1986 185
A Meeting of All Shelters 190
The Review is Announced 192
Other Events in Late October 196
Christies Beach on Fortnightly Funding 201
Belated Approval of Review Committee 203
Members of Review Committee Announced 204
The Plaintiff takes Sick Leave 205
THE REVIEW COMMITTEE’S WORK
The Review Committee Starts Work 206
The First Meeting 207
Other Meetings 210
Ms Wighton Replaces Ms Lowe 212
The Committee Calls for Submissions 213
The Committee and the Christies Beach Shelter 214
Second Meeting of the Review Committee 217
Invitation from Christies Beach to the Committee 218
The Visit on 19 January 219
Third Meeting of the Review Committee 222
The Visit on 11 February 223
No Records of Other Meetings of Committee 227
A Draft Report 228
Cornwall Promises to Meet Christies Beach and North Adelaide 231
THE DECISION TO CRITICISE CHRISTIES BEACH
The Minister is Informed of Allegations 237
The Meeting on 12 May 243
A Request for Legal Advice 246
Housing Trust Informed 247
Meeting at Crown Solicitor’s Office 250
Dr Cornwall Meets Departmental Officers 253
Dr Cornwall Requests Investigations 256
Investigations Begin 264
The Meeting on 11 June 267
Mrs Roberts Meets Dr Cornwall 274
Last Meeting of Review Committee 275
Mr Selway Gives Advice 278
FUNDING WITHDRAWN
Dr Cornwall Recommends Tabling of Report 283
Christies Beach Signs Undertaking 288
The Formal Recommendation 296
A Letter to Senator Ryan 297
Dr Cornwall Returns 298
The Decision is Announced 302
The Television Broadcasts 304
The Shelter Closes 306
SUBSEQUENT EVENTS
The Shelter and the CAC 311
Police Investigations 319
A Parliamentary Select Committee 328
The Ombudsman Investigates 334
SOME MATTERS FOR NOTING
The Meeting in October 1983 340
Aspects of the Decision to Withdraw Funding 347
Whose Decision? 348
Natural Justice Denied 349
Some Features of the Allegations 355
(1) The Grounds for the Recommendation 356
(2) Christies Beach is Singled Out 357
(3) Few Complainants 358
(4) The Whole Truth Not Stated 362
(5) Nothing Exculpatory Included 370
(6) Some Extreme Allegations 371
(7) Failure to Assess 373
(8) Recklessness not Negligence 374
The Unsubstantiated Allegations Not Originally Included 375
Why the Allegations were Included 379
Christies Beach and North Adelaide 382
Christies Beach and Other Shelters 391
The Events of May to July 1987 401
The Reasons for Withdrawing Funding 411
Dr Cornwall’s Reasons 417
The Reasons of the Review Committee 433
THE PLAINTIFF’S CASE
The Status of the Review Committee 441
The Modus Operandi of Review Committee 456
DEFAMATION
The Claim against the Review Committee 466
(1) The Statements Complained Of 468
(2) Are the Words Defamatory? 471
(3) Was the Plaintiff Identified? 478
(4) Justification 485
(5) An Overview of the Plea 495
(6) Qualified Privilege 499
(7) Malice 502
(8) Joint Tortfeasors 517
The Claim Against the TV Stations 522
The 7.30 Report 524
(1) A Defamatory Meaning? 527
(2) Was the Plaintiff Identified? 530
(3) A Fair Report? 538
(4) Fair Comment? 542
(5) The Lange Defence 546
(6) Did the ABC Act Reasonably? 555
(7) Justification 565
State Affair 567
(1) A Defamatory Meaning? 570
(2) Was the Plaintiff Identified? 572
(3) A Fair Report? 574
(4) Fair Comment? 575
(5) The Lange Defence 576
The Claim Against Mrs Roberts 580
MISFEASANCE IN A PUBLIC OFFICE 588
NEGLIGENCE 604
A Duty of Care in the Ministers? 606
Senator Ryan’s Position 626
Did the Review Committee Owe a Duty of Care? 628
CONSPIRACY 647
DAMAGES
The Effect on the Plaintiff 658
Assessment of Damages 677
Loss of Reputation, etc 687
Economic Loss 697
Aggravated Damages? 708
Exemplary Damages? 710
Damages for Misfeasance 712
Special Damages – Medical 713
Special Damages – Other 717
The Total Award 720
APPENDICES
Appendix 1 - Extract from the Report “Shelters in the Storm”
Appendix 2 – Exhibit P4
DEBELLE J. In this action, the plaintiff claims damages for loss and damage caused to her by the publication in August 1987 of a report on women’s shelters called “Shelters in the Storm” (“the Report”). The plaintiff was, in August 1987, the Administrator of the Christies Beach Women’s Shelter which was severely criticised in the Report. As I find later, the Report by a series of what were called “unsubstantiated allegations” grossly defamed the plaintiff. Her claim is grounded on several causes of action which will be identified later.
The Allegations
The Report had been tabled in the Legislative Council on 12 August 1987. It included a recommendation to withdraw funding from the Christies Beach Women’s Shelter. (For convenience, I will refer to the Shelter as either “the Christies Beach Shelter” or “the Shelter” or “Christies Beach”). The recommendation to withdraw funding was made on page 76 of the Report. It was in these terms:
“In view of the maladministration, both historic and current, of this shelter and in view of uncertainty as to whether services to clients are both fully available and appropriate, the Review Committee recommends that funding be withdrawn.”
The recommendation to withdraw funding was based in part on a list of grave unsubstantiated allegations against the Shelter. As I later find, the expression “in view of the uncertainty as to whether services to clients are both fully available and appropriate” is based in large part on the unsubstantiated allegations. The allegations covered a wide range of conduct. Those allegations are listed in that section of the Report which is Appendix 1 to these reasons. Most are to be found on pages 65 to 68 of the Report. (The page numbers of Appendix 1 accord with the page numbers in the original Report). The allegations are examined later when dealing with the plaintiff’s claim for defamation, where I find that the allegations are defamatory of the plaintiff. It is convenient to list them now in order to convey the gravity of what was alleged against the plaintiff.
The Report first lists a series of unsubstantiated allegations said to be examples only. (The references to “the Department” in the Report are to the Department of Community Welfare). The Report stated:
“Examples of unsubstantiated allegations made to the Department about deficiencies in financial management, unacceptable management practices and professional and personal misbehaviour include:
• persistent over-spending and inadequate financial recording
•operating costs used to augment salaries without the authorisation of the Department
•inadequate personnel records and ineffective control of personnel and resources and granting of excessively generous terms and conditions of employment
• inappropriate personnel and financial management
• misappropriation of funds
•failure to co-operate with Departmental personnel in the normal course of funding procedures
• sexual harassment
• physical harassment and intimidation
• professional negligence
•unprofessional, inappropriate and exploitative client counselling practices including breach of confidentiality (and claims by other agencies of inappropriate methods and subsequent need of rehabilitative counselling of some clients who had been the subject of the shelter’s counselling services).”
No attempt was made at the trial to justify the last six of those allegations. They were very serious allegations to make against the staff at a women’s shelter. The allegation of misappropriation is tantamount to an allegation of theft. The other allegations assert conduct unbecoming in any sense, but entirely inappropriate in a women’s shelter. The allegations were a shocking defamation.
An attempt was made at the trial to justify the allegation that operating costs were used to augment salaries without the authorisation of the Department of Community Welfare but that attempt failed. I later find that the rest of the above allegations, save for one or two, were not justified.
The plaintiff did not dispute the allegation of overspending or that the Shelter incurred deficits. The reasons why the Shelter was in deficit were explained in the evidence and I am satisfied that it was not because of financial mismanagement. I will return to these issues.
In the case of some of the financial and management issues asserted to have occurred and listed on pages 66 to 68 of the Report, a number are literally correct but the full facts were not stated, so that what was stated misrepresented the true situation. I deal later with each of those statements and find that most are defamatory.
The State Defendants
The Report was prepared by a committee appointed in 1986 by Dr Cornwall, the then Minister of Health and Community Welfare in the Government of South Australia. For convenience I will call it “the Review Committee”. The members of the Review Committee were Mrs Judith Roberts, Ms Judith Blake, Ms Rosemary Wighton, Ms Colleen Johnson and Ms Robyn King. Ms King was employed by the Commonwealth Department of Community Services. She was one of the Commonwealth defendants. The paid consultant to the Committee was Ms Harrison Anderson, Dr Cornwall tabled the Report in the Legislative Council. Dr Cornwall, the members of the Review Committee and Ms Anderson are all defendants in this action together with the State of South Australia. In addition, Mr C J Sumner, who was in 1986 and 1987 the Attorney-General for South Australia, is a defendant.
Ms Wighton died on 7 February 1994. An order was made appointing her executors as defendants in her stead.
The Commonwealth Defendants
Having tabled the Report in the Legislative Council on 12 August 1987, Dr Cornwall announced that he was withdrawing funding from the Christies Beach Women’s Shelter. The arrangements between the Commonwealth and the State Governments required that any decision to withdraw funds from a shelter be made jointly by the respective Commonwealth and State Ministers for Health. In August 1987, Senator Susan Ryan was the Minister assisting the Minister for Community Services and Health in the Commonwealth Government. On 12 August Dr Cornwall consulted her. They agreed to withdraw funding from the Christies Beach Women’s Shelter. The decision to withdraw funding was announced on 12 August 1987, the actual funding to cease on 4 September 1987. Senator Ryan and the Commonwealth are also defendants in the action. Ms King is another Commonwealth defendant.
The Other Defendants
On 12 August 1987, two television stations in Adelaide broadcast programs during which Mrs Roberts commented on the decision to withdraw funding from the Christies Beach Women’s Shelter and representatives of the Shelter replied. The two stations were operated respectively by the Australian Broadcasting Commission (“the ABC”), which broadcast on Channel 2 a program called The 7.30 Report, and Television Broadcasters Ltd (“TVB”), which then broadcast on Channel 7 a program called State Affair. (Some time after 1987, TVB changed its frequency. It now broadcasts on Channel 10 and another operator broadcasts on Channel 7). Since this action began TVB has changed its name to Network Ten (Adelaide) Pty Ltd. I will refer to it as “TVB”. The plaintiff claims damages from both the ABC and TVB claiming that they each defamed her in those programs. She also claims damages from Mrs Roberts for defaming her in those programs.
The Plaintiff’s Causes of Action
The plaintiff had instituted a number of causes of action against a variety of defendants. Two causes of action were withdrawn at the trial. The first was a claim for abuse of process and acting for improper purposes against Mr Sumner, who in 1986 and 1987 was Attorney-General and Minister for Consumer Affairs. The second concerned all defendants save the ABC and TVB. The plaintiff had claimed that they had wrongfully and maliciously induced and had procured a breach of the contract between the Christies Beach Shelter and herself, thereby causing the Shelter to terminate her contract of employment.
Later in these reasons, I will examine each cause of action in respect of each of the defendants in detail. For the moment, I simply note each of the remaining four causes of action and the defendants in respect of each.
(1) Negligence
The plaintiff sues three sets of defendants in negligence. They are Dr Cornwall, Senator Ryan, and the individual members of the Review Committee and Ms Anderson. The essence of the claim against the two Ministers is that they negligently acted on and allowed the publication of the unsubstantiated allegations. As against the Review Committee and Ms Anderson, the plaintiff claims they negligently included those allegations in the Report.
(2) Defamation
The plaintiff sues three sets of defendants in defamation. They are the individual members of the Review Committee and Ms Anderson, the Australian Broadcasting Corporation (“the ABC”), and Television Broadcasters Limited (“TVB”). The claim against the Review Committee and Ms Anderson asserts that malice defeats the qualified privilege which attached to the Report. There is a further claim against Mrs Roberts for appearing on the two television stations and repeating the defamations. In addition, the plaintiff claims damages from the two television stations for the alleged defamations by Mrs Roberts in the two television broadcasts.
(3) Conspiracy
The plaintiff sues Dr Cornwall, Mr Sumner, the individual members of the Review Committee and Ms Anderson for the tort of conspiracy to injure her in her employment as Administrator of the Christies Beach Shelter and in her role as an advocate on issues of domestic violence and women’s rights.
(4) Misfeasance in a Public Office
The plaintiff claims that Dr Cornwall acted maliciously towards her when withdrawing funding from the Shelter and thereby caused her loss. She therefore sues him for the tort of misfeasance in a public office.
During the course of the trial, it was necessary to remind the parties from time to time that I was not deciding whether Dr Cornwall had been correct in withdrawing funding from the Christies Beach Shelter but whether the plaintiff should succeed on her separate causes of action. I reiterate that fact because a good deal of the evidence concerned the events leading to the appointment of the Review Committee, its Report, the events leading to the decision to withdraw funding, and the reasons for that decision. That was unavoidable, given the interaction of the issues in these proceedings and the decision to withdraw funding. It will be necessary to examine those matters in these reasons. However, I repeat that I am not deciding whether Dr Cornwall was correct in withdrawing funding.
Dramatis Personae
On occasions, for convenience, I will refer to the parties and to others involved in the events which give rise to these proceedings by their respective surnames alone. I mean no disrespect in doing so.
(1) The Plaintiff
Her Background
The plaintiff, Ms Dawn Rowan, was born on 15 February 1946. When the Report was published she was aged 41 years. The plaintiff had been trained as a school teacher. In 1967 she obtained the degree of Bachelor of Music at the University of Adelaide and a diploma in teaching from what was then the Adelaide Teachers’ College. She taught music. She married in 1967. She and her husband travelled overseas in 1973-1974. On returning to Australia, she was appointed Director of Music at Scotch College in 1975, a position she held until 1976. After teaching at both public and private schools, she decided in 1978 to become involved in the emerging women’s shelter movement. In 1978, she was employed at the Western Area Women’s Shelter. On 25 July 1978, she was dismissed from that employment. She instituted proceedings in the Industrial Court claiming that she had been wrongly dismissed and seeking reinstatement. She failed in that claim. It is apparent from the judgment in the Industrial Court that, after a satisfactory beginning, strong philosophical differences of opinion concerning the method of running the Western Area Women’s Shelter emerged between members of the management committee of that shelter. The plaintiff shared the views of a minority of the committee. The plaintiff expressed her views vigorously and in a manner which was unacceptable to the majority of the committee. It was found that she was abrupt and discourteous to them. The Industrial Court held that she was dismissed, not because of any mismanagement in relation to her work at the shelter, but because of her inability to work cohesively with the majority of the management committee. She was not reinstated.
The plaintiff then returned for a short time to teaching. She divorced her husband in 1980. In September 1981, she returned to women’s shelters when she commenced employment as the Administrator of the Christies Beach Women’s Shelter. The salary for the Administrator was substantially less than the salary the plaintiff had been receiving as a teacher. She remained as Administrator until 4 September 1987 when her employment at the Christies Beach Women’s Shelter was terminated because of Dr Cornwall’s decision to withdraw funding.
Her High Public Profile
From at least 1975, the plaintiff took an active interest in women’s political affairs. From 1978, her interest in that area became focussed on domestic violence and women’s shelters. From that time, and especially from the time she commenced her employment at the Christies Beach Women’s Shelter, she became very active in issues concerning women’s shelters. She vigorously pressed issues concerning the Christies Beach Shelter with the Department of Community Welfare (“the Department”). She was prominent in seeking additional funding for shelters generally and for the Christies Beach Shelter in particular. She was a prominent advocate in the cause of the prevention of domestic violence and of providing assistance for women who had suffered domestic violence. She frequently gave papers and conducted workshops on the topic of domestic violence. In each of the years 1982 to 1986 she addressed police officers and police cadets on this subject. Over that same period, she also addressed health centres and nurses on domestic violence. In 1985, by invitation, she addressed the topic at the first national conference on domestic violence in Canberra. She spoke on domestic violence to the Salvation Army in June 1986. She frequently wrote articles in the press on domestic violence and other issues relating to women’s shelters. She spoke on radio about those issues. By 1986, she was a well known advocate on issues relating to women’s shelters and domestic violence. She had, by 1985, a prominent public profile on those issues. That was, no doubt, why in late 1984 she was invited by the Australian Law Reform Commission to be one of its consultants on its reference relating to contempt, an invitation she accepted.
In South Australia, the plaintiff was one of the political activists for women’s shelters. Others were Ms Joan Balendran, Administrator of the North Adelaide Shelter, Ms Dawn McMahon, and Ms Moira Shannon, Administrator of the Port Lincoln Shelter.
The plaintiff was also involved in other community work. From 1981 to 1985, she was a member of the Noarlunga Community Services Forum, which later became the Noarlunga Health Village. From 1983 to 1985, she was a representative of that forum on the Southern Sector Advisory Committee of the South Australian Health Commission. In 1984, she was the forum’s representative on the interim board of Noarlunga Health Services, established by the Minister of Health. In 1983 and 1984, she was a member of the Advisory Committee of the Noarlunga Health Village, also established by the Minister of Health. In 1983 and 1984, she was also the representative for women’s shelters on the Women’s Advisers Domestic Violence Committee, which had been established by the Premier’s Department. In 1983 and 1984 she was also the representative for women’s shelters on a national review of women’s services. From 1985 to 1987, she was the representative for the Christies Beach Shelter on the women’s SAAP Advisory Committee, a committee established under a funding program called “the SAAP Program” to which detailed reference is made later in these reasons. She had also been a member of the Program Advisory Committee of the SAAP Program in 1985 and in early 1986 but had resigned from that position later in 1986.
From June 1982 until November 1983, the plaintiff was a member of the Priority Review Committee of the South Australian Housing Trust as the nominee of SACOSS, the South Australian Council of Social Services. As will be seen, her membership of this committee was to lead to allegations against her.
I find that in the years 1982 to 1987, if not before, the plaintiff was extremely well known in the women’s shelter movement, in government, in the Department of Community Welfare, in other government agencies and in the general community as the Administrator of the Christies Beach Shelter and as a prominent advocate for shelters generally, for the funding of shelters, and on issues relating to domestic violence. In the years 1981 to 1987, she was the public face of the Christies Beach Shelter. There were few others in the women’s shelter movement who had such a high profile.
The evidence suggests, and I find, that the plaintiff vigorously pursued the objectives both of the Christies Beach Shelter and of women’s shelters generally. She was one of the leaders in South Australia of the women’s shelter movement and other shelters relied on her advocacy. She was a long time member of the Women’s Shelter Advisory Committee (“WSAC”), a lobby group for women’s shelters and was very prominent in its affairs both in 1985 and 1986. She was plainly committed to the cause of women’s shelters as well as to the cause of women who suffered from domestic violence. She held strong opinions and voiced them forcefully. She believed that these causes should be politically advocated and she energetically threw herself into that political activity. The plaintiff is quite tall and well built. In the 1980s she had a forceful personality. She was a forthright and determined woman. She could be quite overbearing on occasions when she sought additional funding. She did not brook opposition. When opposed, she would resort to political means to achieve her ends. She did not seem to appreciate that on occasions her purpose might have been capable of achievement by a more subtle and less forthright approach. It is clear that, from time to time, her insistent prosecution of various matters on behalf of the Christies Beach Shelter or other shelters greatly annoyed, if not offended, some individuals in the Department. Her political activity meant that she made some enemies. I will return to that. I find that she was unpopular with some, in particular, Ms Wighton and Ms Heath, who were both employees of the Department. However, I find that her motives were honourable and well intentioned. While she irritated some individuals in the Department, she had the respect of others who respected her motives. They included Mr Peter Bicknell, the head of the non-government welfare unit of the Department in 1986 and 1987. Frequently, she sought further funding for the Christies Beach Shelter and obtained it.
(2) The Staff and Management of Christies Beach
In a moment, I will briefly note the history of the Christies Beach Shelter and mention some of the issues concerning the Shelter. The Shelter was run by a management committee and staff. In the period 1985 to 1987, the staff of the Shelter were the plaintiff as Administrator, Ms McSkimming, who was also secretary of the management committee, Ms Lachlan, Ms Underdown (until 2 September 1986), Ms Anthea Staiff (from 6 May 1986) and Ms Heather Tangy. Like the plaintiff, Ms McSkimming and Ms Staiff had formerly been school teachers. Ms Lachlan had experience in bookkeeping and administration. Ms Underdown acted as the bookkeeper of the Shelter and, after she left, Ms Lachlan assumed that role. The plaintiff delegated secretarial and accounting tasks to Ms McSkimming and Ms Lachlan later assisted with them.
In the years 1982 to 1984, Ms Dolores Gill was the chairperson of the management committee. In 1984 to 1985, the chairperson was Ms Anthea Staiff, and in 1985 to 1986 it was Ms Lachlan. In 1986 and 1987, the chairperson was Dr Frances Baum. Later in 1987, she was succeeded by Ms Guthberlet. Dr Baum holds a doctorate of philosophy and is qualified in the fields of epidemiology and biostatistics. In 1994 she was appointed Director of the SA Community Health Research Unit of the SA Health Commission and still holds that office. In 1987 she took up a half-time lectureship in community medicine at the University of Adelaide. In 1992 she was appointed Professor and Head of Department, Department of Public Health in the School of Medicine at Flinders University. She still holds that position.
(3) The Minister and the Department
Dr Cornwall was a member of the Legislative Council. In 1986 and 1987, he was the Minister of Health and of Community Welfare in the Bannon Government. His portfolio included the administration of the Department of Community Welfare. He held that portfolio from December 1985 to 4 August 1988, when he was removed from office. He was succeeded as Minister by Ms Susan Lenehan on 12 August 1988. He resigned from the Legislative Council on 31 January 1989.
From 1983 until late 1985, the Minister for Community Welfare was Mr Greg Crafter. Dr Cornwall took over the portfolio from Mr Crafter in 1985. During Dr Cornwall’s ministry, Mr Crafter acted as Minister when Dr Cornwall was overseas in July to August 1987.
The Minister’s staff included ministerial advisors. Dr Cornwall’s ministerial advisor on community welfare was Ms Anne Pengelly.
The Department of Community Welfare funded women’s shelters. Although it did not manage them, it had a supervisory role. The evidence is that it was not a large department. Throughout the period, the subject of these proceedings, the head of the Department was called the Director-General. In at least 1982, 1983 and 1984, Mr Ian Cox was Director-General. On 4 February 1985 he was succeeded by Ms Suzanne Vardon who held the office until 1992. The name of the Department and the name of the office of the head of the Department changed after 1987 but that is of no present consequence.
From 1985, the next two positions in the hierarchy of the Department were two Deputy Directors-General. One of them was Ms Rosemary Wighton. She had been appointed to that post in 1983. In the immediately preceding years, she had been Women’s Adviser to the Premier. Among other duties, Ms Wighton was responsible for the non-government welfare unit in the Department. She was the departmental officer responsible for the operations of the Review Committee. She also became a member of the Review Committee. I find that Ms Wighton played a prominent part in the matters, the subject of these proceedings.
The non-government welfare unit of the Department funded and supervised women’s shelters. From 1985 until 1991, the head of that unit was Mr Peter Bicknell. Mr Bicknell had been a ministerial advisor to Mr Crafter from 1983 to 1985. Other officers in the unit were Ms Meredyth Taylor, Ms Adrienne Summers, and Ms Bronwyn Webster. Another person who took a prominent part in the business of the Department was Ms Wendy Heath. From at least 1983 to 1987, she was acting advisor on women and welfare. It is not entirely clear from the evidence whether she was a ministerial advisor or an officer of the Department. I find that she was the latter. It matters little which she was. All that needs to be noted is that she was active in the affairs of the Department and supervised shelters, including the Christies Beach Shelter. She was a person to whom a number of complaints were made about the Christies Beach Shelter.
The line of authority in the Department in relation to matters concerning women’s shelters was from the officers in the non-government welfare unit to Mr Bicknell, from Mr Bicknell to Ms Wighton, and then to Ms Vardon. Minutes to the Minister might, according to the importance of the matter, be sent by Mr Bicknell, Ms Wighton or Ms Vardon. Ms Vardon seldom prepared correspondence or minutes. If she signed a letter or a minute, it would have been prepared, as a general rule, by either Mr Bicknell or Ms Wighton.
(4) The Review Committee
In October 1986, Dr Cornwall appointed a committee to review the administration of women’s shelters. I will later explain the circumstances in which the Review Committee came to be appointed and state its terms of reference.
The Review Committee was chaired by Mrs Judith Roberts. She had served on a number of community organizations and had been active in women’s affairs. She had been Vice-President of SACOSS from 1982 to 1986 and in that period was the Chairperson of the Executive Committee of SACOSS. She had worked on other committees appointed by Dr Cornwall and had been involved in a number of issues relating to non-government agencies. I find that, although she did not share Dr Cornwall’s political views, she worked closely with him on the tasks he assigned to her.
The other members of the Review Committee were Ms Wighton, Ms Colleen Johnson, Ms Judith Blake, and Ms Robyn King. Ms Johnson had been trained and had worked as a school teacher. She gained further qualifications and from 1981 had served in different administrative positions, first in local government and from 1983 in the State Government. In 1986 and 1987 she was Executive Director, Management Services of the South Australian Health Commission. She was appointed to this Committee because of her management and financial skills.
Ms Blake had had long experience in community service, particularly in the YWCA. From 1970, Ms Blake had been Executive Director of the YWCA at Whyalla (a position she held until 1995) and had been the Administrator of the Whyalla Women’s Shelter from 1976. She was appointed to the Committee as a person with some experience in women’s shelters. Some of those involved in women’s shelters, including the plaintiff, did not believe that she was an appropriate representative. It is unnecessary to find whether she was or was not.
Ms King was a career public servant in the Commonwealth Public Service. In September 1985 she took up the position of Senior Assistant Director of the Commonwealth Department of Community Service in its South Australian office. She was the second ranking officer in the management of the Commonwealth Department in this State. She remained in that position until 1987. In that role, she had had experience of the SAAP Program. The Commonwealth Department of Community Services worked with the State Department of Community Welfare in relation to women’s shelters. The two Departments liaised on issues relating to funding. Ms King was appointed at the request of the Commonwealth Minister, Senator Grimes, who wanted a representative of the Commonwealth Department of Community Services on the Committee.
The Review Committee was assisted by a paid consultant, Ms Harrison Anderson. She had at different times been employed by, or had acted as a consultant for, community organizations, local government and State Government. From 1977 to 1983 she had been the coordinator of SPARK, an acronym for “Single Parent and After Resource Centre”, albeit with one letter substituted. It was a non-government organization founded to assist single parents and their children. She had served on social welfare committees. She was asked to serve on the Review Committee by Ms Wighton. She had met Ms Wighton earlier, when working at SPARK at a time when Ms Wighton was the women’s advisor to the Premier.
The remaining defendant associated with the Government of South Australia is Mr C J Sumner. In the years 1985 to 1988, he was Attorney-General and Minister for Consumer Affairs. Part of his portfolio included the Corporate Affairs Commission, which investigated and later prosecuted the plaintiff and two other employees of the Christies Beach Shelter in circumstances which will be mentioned later.
(5) The Commonwealth Ministers
Two Ministers of the Commonwealth Government were involved at different times in the events the subject of this action. They were Senator Donald Grimes and Senator Susan Ryan. Senator Grimes held several ministries in the second Hawke government. They included Minister for Community Services. He held that position in 1985, 1986, and until February 1987. On 24 July 1987, after the election of the third Hawke government a little earlier in July, Senator Ryan assumed several portfolios, one of which was Minister assisting the Minister for Community Services and Health, that Minister being Senator Neal Blewett. The duties of her portfolios as Minister for Community Services included responsibility for the SAAP Program at the federal level. She agreed with Dr Cornwall’s decision to withdraw funding from the Christies Beach Shelter. She is, therefore, the only Commonwealth Minister who is a defendant in this action. To summarise, Senator Grimes was the relevant Commonwealth Minister in 1985, 1986 and until February 1987. Senator Ryan was the Minister from 24 July 1987. Mr Hurford MHR was Minister for Community Services from February to July 1987 but his duties did not cause him to become involved in the issues in this action.
The Witnesses
The main events, the subject of these proceedings, occurred some 14 to 15 years before the hearing of this action. It is understandable, therefore, that many of the witnesses did not have any independent recollection of particular facts or events. Most of the witnesses engaged in a good deal of reconstruction based on such documents as remained in existence. Few had an independent recollection of particular facts or events and, in some cases, it was plain that a witness was relying entirely on documents to refresh his or her memory. In some instances, the plaintiff and her witnesses had a quite clear recollection of particular events. That, I find, is because they were particularly affected, emotionally or in some other direct way, by the event so that their recollection remains very keen.
The oral evidence of the witnesses occupies some 5,000 pages. There are nearly 1,000 exhibits. It would serve little purpose to attempt to summarise the evidence and to do so would greatly extend the length of these reasons. The facts which are recited in these reasons represent the findings I have made. There is little dispute about many facts. They are plainly established by objective evidence such as correspondence, minutes of meetings or other documents. There are some areas where it has been necessary to reject the evidence of a particular witness. In some instances, I mention that I have rejected the evidence of a witness. However, because of the immensity of the evidence, I have not done that on every occasion. My findings will indicate to the parties the evidence which I have preferred.
(1) The Plaintiff’s Evidence
The plaintiff gave evidence. She also conducted her own case. This duality of roles meant that, on occasions, the line between evidence and submissions became blurred but that blurring did not affect her evidence on any material issue. The plaintiff has obviously been very emotionally affected by the events of 1986 and 1987 and, at times, when recounting particular events, she broke down. She was frank and candid in her evidence. Early in her evidence she sometimes became an advocate for her cause but that dissipated. She directly answered questions and was not evasive. Her recollection of some facts was at fault, but not on any important issue. Her understanding of the financial administration of the Shelter was not detailed. It was clear that she delegated the financial administration to Ms McSkimming and relied on her. On occasions, she was guilty of overstatement. Despite some defects in her evidence, I find her to be a witness of truth and accept her evidence.
(2) The Plaintiff’s Witnesses
The plaintiff called 15 witnesses. Five were members of the management committee or staff of the Christies Beach Shelter, Ms McSkimming, Ms Lachlan, Ms Staiff, Ms Gill, and Dr Baum. Ms McSkimming was in the witness box for six days. In that time, I formed a favourable impression of her. She gave her evidence frankly, candidly, and to the best of her recollection. On occasions, her recollection was at fault but not on any material issue. I accept her evidence. I also accept the evidence of the other witnesses from the Shelter. I was looking to see if their evidence was coloured by self-interest or sympathy for the plaintiff. While they clearly sympathised with the plaintiff, I do not think their evidence was coloured either by that sympathy or by any self-interest. Dr Baum was a particularly impressive witness. She was perceptive and intelligent though, at times, inclined to argue the case of the Shelter.
The plaintiff called two psychiatrists, Dr Valent and Dr Gauvin. They refreshed their memory from notes or correspondence. Broadly speaking, I accept their evidence but I note that their opinions were based on what the plaintiff had told them. I have regard to that when assessing damages.
The plaintiff called four witnesses for the purpose of proving the reputation of the Shelter with government agencies. They were Mr Michael Elliott MLC, Mr Millington, who had worked in the office of the Department at Noarlunga, Mr Althuizen, a former officer of the Department, Mr McFarlane, a former employee of the South Australian Housing Trust, and Mr Wood, a former employee of the Department of Social Security. They had no interest in the action. Their evidence was forthright and plainly honest, and I accept it. Mr Elliott was in a difficult position in that the evidence which the plaintiff sought to lead from him was largely irrelevant.
The remaining three witnesses called by the plaintiff gave evidence concerning her claim for damages. Ms Vicki Nielsen, a senior consultant with Morgan and Banks, an organization engaged in recruitment of executives (now called TMP Worldwide Resources) gave evidence as to the plaintiff’s employment prospects. I found her evidence unhelpful. Ms Tony Williams is the plaintiff’s partner and has lived with her in Victoria since 1992. Her evidence was largely uncontroversial. I accept it. Ms Sally Brennan had worked with the plaintiff in Victoria in 1990 at the Outer East Women’s Health Service. She now runs an organization called “UYCH Learning Centre”, an adult education and training centre at Yarra Junction, east of Melbourne. The centre provides a range of TAFE and further education programs. She gave evidence concerning the capacity of the plaintiff to lecture in these programs. I accept her evidence.
(3) Dr Cornwall
I regret to say that I was not impressed with the evidence of all of the defendants or their witnesses.
Like other witnesses, Dr Cornwall did not have a good recollection of events and had reconstructed relying on the documents. That is to be understood, given the long time since the events had occurred. However, his evidence was not convincing. At times, his recollection was plainly wrong. More significantly, his evidence contained a good deal of ex post facto self-justification and, on occasions, he would give an opportunistic or self-serving answer. On others, he would overstate the position. On a good number of occasions his answers were either not responsive or evasive. On occasions, he displayed a degree of animosity to the plaintiff, taking the opportunity to make unnecessary and gratuitous asides intended to insult her. For example, when asked if he thought that the publication of the Report would damage the reputation of the plaintiff and others at the Shelter, he said that it would cause damage but that depended on the status of the reputation of the plaintiff and others at the time of publication. The reference to the status of the plaintiff’s reputation was unnecessarily offensive. The clear implication was that her reputation was very poor. Twice he gave an answer to that effect. I accept his evidence only where it is corroborated by objective facts.
(4) The Review Committee
All members of the Review Committee gave evidence. I am unable to accept the evidence of Mrs Roberts or Ms Anderson, except where it is corroborated by objective facts. Mrs Roberts was most unimpressive. Her evidence, at times, was careless. On other occasions, she was prepared to make an assertion but, when pressed for detail, would retreat saying that she could not recall. On occasions, she would say what she thought might assist, notwithstanding that she quite obviously had no recollection. She was inclined to be dogmatic on certain issues when there was no justification for it. There was a considerable degree of self-justification in her evidence and at times she became an advocate for her own cause. Some of her evidence was plainly wrong.
Ms Anderson too was unimpressive. Her answers were often vague and general. She was careless and, on occasions, quite inappropriately flippant. She sometimes engaged in unnecessary and inappropriate hyperbole. Her evidence was often not responsive to questions. She professed to have a clear recollection of some relatively insignificant details concerning the Christies Beach Shelter. However, she was unable to recall other more significant events and for that reason I do not accept her professed recall of events at the Christies Beach Shelter. In addition, Ms Anderson had visited a number of shelters in the course of the review and so it is unlikely that she would remember specific issues at Christies Beach particularly as it was one of the first shelters to be visited. Her evidence also displayed a degree of self-justification. Ms Anderson painted a picture of the Christies Beach Shelter which was not consistent with the evidence of Mr Bicknell. I prefer his evidence for the reasons given later.
Ms Johnson gave the very clear impression that being required to give evidence in this action was an unnecessary waste of her time. Her answers had the air of unreality. She was prone to exaggeration particularly when describing the Christies Beach Shelter so much so that I could not accept that evidence. Like Ms Anderson, she could not remember relatively important events but professed a clear recollection of detail concerning Christies Beach, a recollection I found unconvincing. I do not accept her evidence unless corroborated by objective facts. Furthermore, Ms Johnson was not closely involved in the dealings between the Review Committee and Dr Cornwall in May and June 1987. She was not closely involved in the drafting of the Report as were Ms Roberts, Ms Wighton and Ms Anderson. It seems that she was called to justify allegations of financial mismanagement by the Christies Beach Shelter. Her evidence failed to do that.
Ms Blake had very little recall of events. She was not as extensively involved in the preparation of the report of the Review Committee as were Mrs Roberts, Ms Wighton, and Ms Anderson. Her evidence was relatively non-controversial. She was plainly not alive to the implications of the Report and the unsubstantiated allegations, although she was aware of the fact the publication of the unsubstantiated allegations would cause harm to the management committee and staff of the Christies Beach Shelter.
Ms King was an impressive witness. Although she had to rely on the documents to refresh her memory so that her evidence involved a degree of reconstruction, it is clear that she had an independent recollection of some events. Her evidence was measured and it was obvious that she carefully considered her answers. She was frank as to what she could and could not recall. I accept her evidence.
(5) The Department’s Witnesses
Two witnesses from the Department were called, Ms Vardon and Mr Bicknell. Ms Vardon had no clear recollection of events and she had reconstructed events from the documents. Her evidence sought to justify the Department’s actions. Her evidence was not convincing. At times, it was clearly opportunistic. On occasions, she sought to distance herself from involvement in the issues and said the responsibility lay with Ms Wighton. In fairness to her, she was not as deeply involved in the issues relating to the work of the Review Committee or its report as Ms Wighton and would have not had the same detailed knowledge of events as Ms Wighton. Her evidence did not always match the evidence of Mr Bicknell and, where it does not, I prefer Mr Bicknell’s account. I do not accept her evidence unless it is corroborated by other objective evidence.
Mr Bicknell’s evidence was in many respects a reconstruction of events based on the documents, as evidenced by his frequent use of the word “presumably”. He was, however, more objective than the members of the Review Committee and Ms Vardon concerning dealings of the Department with Christies Beach. To a large extent, I accept his evidence.
(6) Other Defence Witnesses
Mr Sumner and Mr Lane gave evidence concerning a prosecution by the Corporate Affairs Commission (“the CAC prosecution”) and some other issues. I accept their evidence. It was largely non-controversial.
Mr B M Selway QC, Solicitor-General, gave evidence concerning advice he had given when employed as a solicitor in the Crown Solicitor’s Office on various issues and, in particular, his advice concerning the draft report of the Review Committee. He had no independent recollection and relied on the documents. His evidence was carefully and convincingly given. I accept it.
Superintendent Simons gave evidence concerning police enquiries. He relied on documents to refresh his memory. I accept his evidence. Mr Peter Holmes, a chartered accountant, gave expert evidence on some accounting issues. I accept that evidence.
Ms Susan Ryan, formerly Senator Ryan, clearly had little independent recollection and relied on the documents. Her evidence largely concerned a telephone call she received from Dr Cornwall on 11 August. Her evidence was consistent with the documents. I accept it and prefer it to the evidence of Dr Cornwall on that issue.
The final witness was Mr Paul Makin, called by Television Broadcasters Ltd. He too had to rely on the documents. His evidence was non-controversial.
The Failure to Call Ms Heath
Ms Heath had been employed at the Department since 1983. She had received complaints from women concerning the Christies Beach Shelter. She participated in an important meeting with the Shelter in October 1983 to discuss some matters of concern to the Department. The details of this meeting will be provided later. She had been involved in decisions to pay deficits to the Shelter. She had been instrumental in arranging for accounting officers of the Department to visit the Shelter to examine its books in March 1985. She had assisted Ms Anderson in the preparation of a list of allegations against the Shelter. She had been present at a meeting with police and officers of the Corporate Affairs Commission on 2 June 1987 who had been appointed to investigate the staff of the Christies Beach Shelter and had then provided detailed information concerning the Christies Beach Shelter.
In her opening, the plaintiff said that Ms Heath kept a dossier concerning Christies Beach. Although it seems that Ms Heath did not keep a dossier, it is quite clear that the Department kept a file of complaints concerning the Shelter and that that file contained many documents which had either been seen by Ms Heath or prepared by her. The effect of the plaintiff’s evidence was that Ms Heath was antagonistic towards both her and the Christies Beach Shelter.
Notwithstanding what was obviously Ms Heath’s very considerable and extensive involvement in the affairs of Christies Beach and knowledge of them, she was not called by Ms Panagiotidis, counsel for Dr Cornwall and the Review Committee defendants. In her opening Ms Panagiotidis had said that it was possible that she might call Ms Heath but had not definitely made a decision to do so. She said she would review it at a later time. In the result she decided not to call Ms Heath. Ms Panagiotidis defended her decision by stating that Ms Heath was not a member of the Review Committee and was not a defendant. She said that she had not been party to any of the decisions which were the subject of the action.
Although Ms Heath was not a party, she was plainly an important witness. She had a particular knowledge of the allegations which had been made against the Christies Beach Shelter. She knew what investigations had been made. She knew what information had been passed on to Ms Anderson. She had known and worked with Ms Wighton for at least two to three years before May 1987. She would have known Ms Wighton’s views about the plaintiff and the Christies Beach Shelter. She could have explained why she provided allegations about the Shelter to Ms Anderson, the circumstances in which the allegations were provided, and whether the supply of that information had been directed by Ms Wighton and, if so, why Ms Wighton had directed it. Broadly speaking, she could have deposed to one of three possible things. One was whether the plaintiff was correct in saying that Ms Heath bore animosity to her. Another was whether Ms Wighton had any antipathy to the plaintiff or the Christies Beach Shelter. A third was that neither she nor Ms Wighton had any animosity towards either the plaintiff or the Shelter. Presumably, she would have been called if her evidence was that neither she nor Ms Wighton bore any animosity to the plaintiff. I find that Ms Heath’s evidence would not have assisted the case of the State defendants. In the absence of her evidence, I find that she and Ms Wighton were antagonistic towards the plaintiff.
Animosity to the Plaintiff?
The plaintiff gave evidence that Dr Cornwall, Mrs Roberts, Ms Wighton and Ms Blake held feelings of animosity towards her. These were separately caused. I summarise the position in relation to each.
The plaintiff and Dr Cornwall had had dealings over several issues before the establishment of the Review Committee. They had known each other since 1982, when Dr Cornwall became Minister for Health. In 1983 the plaintiff, as a member of the Noarlunga Health Village, had been campaigning for a polyclinic to be established at Noarlunga. That campaign had failed. In 1984, the plaintiff and others in the women’s shelter movement had been campaigning for a shelter to be established to assist psychiatrically disturbed women. In the course of that campaign, she and Ms McMahon, another representative of women’s shelters, had had a meeting in May, 1984 which she described as fiery. She said that Dr Cornwall had become angry and rude both to her and Ms McMahon complaining to them of “gratuitous violence from women”. Dr Cornwall said that he had no recollection of the meeting but added that, if provoked, he may have used those words.
The plaintiff gave evidence of a meeting at the Noarlunga Council Chambers late in October, 1984 when she said that Dr Cornwall publicly criticised her in relation to the campaign being run by the Noarlunga Women’s Health Centre. However, the plaintiff was not involved in that campaign. Dr Cornwall could not remember the occasion but said that the plaintiff was “a fairly up-front sort of person. It is not entirely impossible that we could have locked horns at some time”. The plaintiff is more likely to remember such an occasion than a busy politician. I accept that the incident occurred.
On 14 May 1986, a meeting had been arranged by Ms McSkimming in the office of Dr Hopgood, a member of Cabinet. The purpose of the meeting was to discuss the funding difficulties of the Christies Beach Shelter. Dr Cornwall, together with Ms Wighton and Mr Peter Bicknell, were also to attend the meeting. The plaintiff went with Ms McSkimming to the meeting. Before the meeting, the plaintiff and Ms McSkimming were waiting outside Dr Hopgood’s office. Dr Cornwall arrived with Ms Wighton and Mr Bicknell. According to the plaintiff and Ms McSkimming, Dr Cornwall was angry and he came up to Ms McSkimming and said words to the effect “I have been waiting to get you for some time”. It is common ground that the meeting occurred. Dr Cornwall does not deny using the words but says they were said wryly with a smile. He said that Ms McSkimming was a victim of his off-beat sense of humour. I do not accept this explanation. I find that the words were said in an angry way.
From mid-1986 the plaintiff, as one of the spokespersons for women’s shelters, came into conflict with Dr Cornwall on a number of issues. Those issues are noted more fully later in these reasons in the narrative of events in 1986. I simply list them at this stage. They were funding issues for women’s shelters generally, the opposition of women’s shelters to the SAAP Program and in particular to the requirement that each women’s shelter sign a financial agreement with the Department concerning funding, the establishment of a new shelter for young women called “Judith House” and the restructuring of the women’s SAAP Advisory Committee. As will be seen, in 1986 and in particular from June to October 1986, women’s shelters were politically very active and very vocal in opposition to policies which Dr Cornwall sought to implement. The plaintiff was in the vanguard of this political activity. The political activity was frequently reported in The Advertiser. Those reports were usually prominent and often on the front page. The opposition by the shelters came to a head on 18 October, 1986 when it was reported on the front page of The Advertiser that a meeting of women’s shelters had called for the nomination of Dr Cornwall as Father of the Year by the Lions Club of Adelaide to be revoked. The article carried photographs of two representatives of women’s shelters, including the plaintiff. Earlier in August 1986, an article in The Advertiser had said that representatives of women’s shelters had described the requirement to sign the financial agreement as “this little Hitler’s decree”. That statement was not attributed to any named person.
I place little weight on the events before 1985. They may be described as part of the cut and thrust of politics. However, they do show that the plaintiff was well-known to Dr Cornwall by 1984. I find that her political agitation in 1985-1986 on behalf of women’s shelters was well-known to him. I find that he associated the plaintiff with those who had described him as a “little Hitler” and had called for the revocation of the Father of the Year award. I find that he disliked her because of her political activity. I find that he was antagonistic towards the plaintiff. He would have been quite ready to act to the detriment of the plaintiff. The plaintiff was a political enemy and if the opportunity arose, he would do what he could to remove her opposition. His antagonism was evident on several occasions in the witness box when he took the opportunity to make gratuitous insults to the plaintiff.
The plaintiff identified two particular instances in her dealings with Mrs Roberts. She said that she had met her at meetings from time to time in the years 1983 to 1986. On 25 October 1983, Mrs Roberts was elected as the chairperson of the executive committee of SACOSS. In 1982, the plaintiff had been appointed as the SACOSS representative on the Priority Review Committee of the Housing Trust. While acting in that role, she had expressed dissatisfaction with what she perceived to be a lack of support from SACOSS on certain policy issues. On 9 November 1983, Mrs Roberts had telephoned the plaintiff to tell her that she had been removed as the representative of SACOSS on the Priority Review Committee. A letter from SACOSS dated 10 November 1983 confirmed that Mrs Roberts had removed the plaintiff from that position. According to the plaintiff, Mrs Roberts told her that she was being removed because she was “an undesirable person”. She said that Mrs Roberts refused to give her any particulars. It is common ground that SACOSS removed the plaintiff from this position. Mrs Roberts denied that the events had occurred as related by the plaintiff.
The minutes of the executive committee of SACOSS show that, on 25 October 1983 the meeting noted that the plaintiff had expressed dissatisfaction with the level of the advocacy of SACOSS on a number of policy issues and that the meeting questioned the appropriateness of the plaintiff continuing to represent SACOSS on the Priority Review Committee. It was resolved that Mrs Roberts and the chief executive officer of SACOSS should meet with the plaintiff to discuss the matters before any decision was made concerning her future representation on the committee. The executive committee met fortnightly. At a meeting one month later, on 22 November 1983, the meeting noted that the invitation for the plaintiff to represent SACOSS on the Priority Review Committee had been withdrawn. The effect of the evidence of Mrs Roberts was that she had endeavoured to arrange a meeting with the plaintiff but that, as the plaintiff was about to go overseas, it had not been possible to arrange the meeting. The plaintiff admitted that she was then about to go overseas but denied that attempts had been made to meet her. I accept the plaintiff’s evidence. I was particularly unimpressed with this aspect of Mrs Roberts’ evidence.
The plaintiff also said that following the decision by SACOSS to remove her as its representative, the Housing Trust responded by making a position on the Priority Review Committee available to a representative for women’s shelters. The plaintiff was appointed to fill that position. She said that Mrs Roberts was angered by the reappointment. I accept that evidence. I also accept the plaintiff’s evidence that she and Mrs Roberts had had differences concerning the establishment of the Migrant Women’s Emergency Support Service.
Mrs Roberts said that she did not know the plaintiff when the work of the Review Committee began. I do not accept that evidence. The plaintiff’s public profile in relation to women’s shelters meant that she was extremely well-known. In her evidence Mrs Roberts asserted that she had had some association with and a knowledge of women’s shelters. She could not, therefore, have failed to have known of the plaintiff.
I find that Mrs Roberts knew the plaintiff before the Review Committee and knew of her political activity on behalf of women’s shelters. I find that she was aware of the plaintiff’s reputation and that she would have been quite amenable to including in the Report remarks which would have reflected adversely on the plaintiff.
The plaintiff pointed to two particular occasions which she said led to Ms Wighton’s antipathy towards her. The first was in 1982 when she had taken up the cause of a migrant woman who I will call G, whose husband had been convicted of manslaughter. The woman had received assistance at the Christies Beach Shelter. The woman wished to return to her home country with her two sons. There were issues in the Family Court. Several government departments were involved including the Commonwealth Department of Immigration. The plaintiff was active in her support of G. Ms Wighton was involved as the Women’s Adviser to the Premier. The plaintiff said that Ms Wighton had accused her of lying and exaggeration in relation to the matter and that this led to subsequent antipathy.
The second was in 1983, when Ms Wighton was a Deputy Director in the Department of Community Welfare. The plaintiff had taken up the cause of a woman whom I will call Mrs C, whose daughter had been placed with foster parents. The matter involved the plaintiff in controversy with the Department concerning both the issue of the fostering of the child and allegations of sexual misconduct by an officer of the Department with Mrs C. The matters attracted press publicity. They were investigated by the Ombudsman who published a report, which included some criticism of some administrative decisions taken by the Department. The Ombudsman had recommended administrative changes concerning the fostering of children.
The plaintiff had also had differences with Ms Wighton concerning the Migrant Women’s Emergency Service. The plaintiff believed that Ms Wighton was antagonistic towards the Christies Beach Shelter and was encouraged in that antipathy by Ms Heath.
The only direct evidence of Ms Wighton’s views is to be found in her evidence to the Select Committee. I am conscious of the difficulties of making findings against a person who was unable to give evidence. I believe the plaintiff may have read more into Ms Wighton’s attitude to her and to the Christies Beach Shelter than in truth existed. But the evidence suggests and I find that by 1987 Ms Wighton was annoyed by the continued demands for funding from the Christies Beach Shelter and by the political activity of the plaintiff.
The plaintiff’s conflicts with Ms Blake essentially stemmed from different ideological views on issues affecting the operation of women’s shelters. They concerned the manner in which shelters should operate and the nature of the services provided at shelters. This led the plaintiff to be publicly critical of the Whyalla Shelter. Ms Blake was chairperson of the management committee of that shelter. They also had differences over the proposed Migrant Women’s Emergency Service, a question which led to a major split in the women’s shelter movement, when four shelters including the Whyalla Shelter left WSAC. The plaintiff remained with the majority of shelters who opposed the funding arrangements for the service on a number of grounds, including that it would drain funds from existing shelters.
I accept that the plaintiff does in fact have a perception that all four individuals were antagonistic towards her. That perception has, I believe, been increased by the loss and damage she has suffered in consequence of the publication of the Report. To some extent, it might be misplaced.
However, I do find that Dr Cornwall, Mrs Roberts, Ms Wighton and, to a lesser extent, Ms Blake each did not hold any brief for the plaintiff or the way she conducted herself. I find that they were disposed to be critical of her and held the attitudes towards her described above. They all would have been very much aware of her vigorous advocacy on behalf of women’s shelters. If the occasion arose, they would have needed little persuasion to act in a manner contrary to her interests.
Missing Documents
One curious feature of this litigation is the fact that files kept by the relevant departments have, to a large extent, been lost or destroyed. Some files were destroyed or lost after this action had commenced. There were four State Government departments and one Commonwealth Government department involved in this matter. The four State departments were the Department of Community Welfare, the Crown Solicitor’s Office, the Police Department and the Corporate Affairs Commission. The Commonwealth department was the Department of Community Services.
Mr Selway’s evidence as that the practice in the South Australian Government as to keeping documents varied from department to department but he believed that, as a general rule, documents would be retained for some time. He believed that the destruction of documents relating to work of the Review Committee was unusual. In those inquiries in which he had been involved for government, documents were usually kept for a relatively long time. I accept that evidence.
A great number of the documents in the files kept by the Department of Community Welfare no longer exist or cannot be located. The evidence is that a majority of the documents relating to women’s shelters have been destroyed. Some files containing unsubstantiated allegations were destroyed on the recommendation of the Select Committee, but that does not explain the substantial number of missing files. A large number of documents have, nevertheless, been discovered. But it is not possible to know how many other relevant documents which might have assisted the plaintiff’s case have not been discovered. There is no doubt that Departmental files existed. Mr Vardon believed that they were kept for seven years and, if litigation had commenced, she believed they would have been kept for a longer period. The plaintiff commenced this action in 1990 which is well within the period of seven years after the events of 1985, 1986 and 1987. The files ought therefore to have been retained.
A search in the Crown Solicitor’s Office did not locate any relevant files. That is not surprising as files would have been returned to the relevant department after advice had been given.
The Police Department kept a file relating to the requests for police investigations and the actual investigation. The evidence is that in 1985 the file was traced to State Archives. A request was made for its retrieval but somewhere the file was lost in the process of retrieval. Nevertheless, it seems that most of the relevant police records have been produced from one source or another. Again, it is not possible to know what other documents might exist which could have assisted the plaintiff’s case.
The Corporate Affairs Commission kept files relating to its enforcement activities including prosecution briefs. Some of those documents have been discovered. However, it seems that not all of them have been. Again, it is not possible to know what documents might exist which would assist the plaintiff’s case.
The Commonwealth files were in existence when this action began. Some documents were copied. However, the original files were later destroyed. Again, it is not possible to know whether any documents existed in those files which might have assisted the plaintiff’s cause. Given the manner in which some documents were ultimately disclosed and in particular the extraordinarily late discovery of the SAAP Agreement, one cannot have confidence that all relevant documents were discovered.
The plaintiff has been able to prove a great number of documents notwithstanding the absence of Departmental files. The difficulty is that one cannot have any assurance that all relevant documents have been discovered and hence have been proved. It is reasonable to conclude that the absence of these files has made it difficult for the plaintiff to prove her case. It is possible to understand that files from one department might have been inadvertently lost or destroyed. Coincidence cannot explain why files from five departments cannot be located.
One particularly curious aspect of the missing documents is that the documents relating to the Review Committee work were destroyed after the Committee had completed its task. The minutes of its meetings and drafts of reports would, in all likelihood, have assisted in the resolution of issues in this action. However, they no longer exist. All members of the Review Committee except Ms King, destroyed any documents in their possession after the completion of the Committee’s work. Ms King and Ms Anderson handed documents in their possession to the Department of Community Services and the Department of Community Welfare respectively. Ms Roberts said that the Review Committee was given legal advice that all working documents should be destroyed on completion of the review. She identified working documents to mean drafts, notes of meetings and interviews which were later incorporated into official records. She did not say what she meant by official records. She believed that official records were handed to the Department. She gave all her working documents to officers of the Department to be destroyed. She could not identify the person who she said had given the legal advice. Ms Blake’s account of the destruction of documents in her possession does not accord with that of Mrs Roberts. She says that the Committee had agreed that all working documents should be disposed of. Ms Johnson also destroyed her own personal documents and handed other documents back to the Department. The Department was unable to locate the documents which were handed to it or what Mrs Roberts called official records. I do not accept Mrs Roberts’ evidence that documents were destroyed on legal advice. The adviser was not identified. It is unlikely that such advice would be given and her evidence is not supported by other witnesses.
In the result, it is not possible to know whether other documents exist which may explain, for example, the events between 12 May and the publication of the Report. That was a critical period. Another feature of the plaintiff’s case was that the Christies Beach Shelter had been treated differently from other shelters. She sought to prove that by requiring production of copies the Undertaking and the Financial Agreement which had been executed by the various shelters. However, only two other copies of those documents were proved. I infer that they were the only copies which had been discovered.
It is not possible to identify a particular issue where the absence of document has had a material consequence. No conclusions can be drawn because of the absence of documents. Nevertheless, a sense of disquiet remains.
Parliamentary Privilege
In the course of the trial, Ms Panagiotidis, counsel for Dr Cornwall and Mr Sumner, objected to some of the questions asked of them by the plaintiff in cross-examination on the ground that the plaintiff was asking about what each had said in the Parliament so that her questions were in breach of parliamentary privilege. Section 38 of the Constitution Act 1934 provides that the Houses of the South Australian Parliament and their committees, members and officers have the same privileges as those enjoyed by the House of Commons as at 24 October 1856. Those privileges include Article IX of the Bill of Rights, 1689 which provided:
“That the Freedom of Speech Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place outside of Parliament.”
The expression “proceedings in Parliament” plainly includes what was said by either Dr Cornwall or Mr Sumner in the Legislative Council.
The rationale for the privilege is that a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences: Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 35; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 324. The privilege is intended to ensure that the Parliament can exercise its powers freely on behalf of its electors: Prebble at 336. See also Hamilton v Al Fayed [1999] 1 WLR 1569.
The privilege is well established. The only issue in this case is as to its scope. Although it is clear that questions cannot be asked which contradict or call into question what was said or done in the Legislative Council, does the privilege extend so far as to render inadmissible any other kind of question?
A number of questions had been asked of Dr Cornwall before any objection was taken. However, that does not have the consequence that the earlier questions are admissible if the question and answer infringe the parliamentary privilege. That is a consequence of the fact that the privilege belongs to the Parliament and not to its members. In other words a member has no capacity to waive the privilege: Prebble at 335.
When objection was taken to questions asked in cross examination of Dr Cornwall, Ms Panagiotidis did not present any argument in support of her position. I allowed the questions. I was encouraged to do so because some of the cross-examination dealt with issues raised by Dr Cornwall in his answers in examination-in-chief. In addition, when answering questions which were not directed to what had occurred in the Parliament, Dr Cornwall would sometimes refer to what had been done or said in the Parliament. It seemed fair that the plaintiff should be able to test his answer. Ms Panagiotidis later objected to questions in the course of the plaintiff’s cross-examination of Mr Sumner. On that occasion she presented argument in support of her objection. Time did not allow a proper consideration of the issues she had raised. I allowed the questions de bene esse stating that I would later rule on the issue. This is the ruling.
For the reasons which follow I was wrong to allow Dr Cornwall to be questioned on the statements he had made in the Legislative Council. I have, therefore, put his answers from my mind and have not in any sense had any regard to them at any stage whatsoever in reaching my conclusions in these reasons. There was a wealth of other evidence in support of the conclusion I have later reached that Dr Cornwall was guilty of misfeasance in a public office. I have dismissed the other claims against Dr Cornwall.
It is important to note also that many of the questions and answers to which objection was taken proved to be quite inconclusive and hence were of no probative value. Others dealt with matters which were proved in other ways. It must also be noted the questions concerning what Dr Cornwall had said in the Legislative Council were but a very small number of the hundreds of questions the plaintiff asked Dr Cornwall in cross-examination. There were only a very small number of questions concerning proceedings in the Parliament which elicited any evidence of probative value and, I repeat, I have had no regard to them.
Ms Panagiotidis did not object to the Hansard record of proceedings in the Legislative Council being tendered so long as the only purpose was to prove what had been said on a particular occasion. That is consistent with authority: Mundey v Askin [1982] 2 NSWLR 369, 373. I have quoted some of those Hansard records in these reasons. I have done so only to state the history of the matter and for no other purpose. I have made no other use of them.
I have had no regard at all to the answers given by Mr Sumner to questions to which objection was taken. They were very few in number. The answers had no probative value. In any event the plaintiff withdrew one of her claims against Mr Sumner and I have dismissed her only other claim against him.
Ms Panagiotidis did not expressly object to any use being made of the Hansard for the purpose of drawing inferences from what was said or done in the House. I have taken the view that the Hansard record of the parliamentary proceedings cannot be relied on for the purpose of drawing any inferences.
I set out my reasons for the above conclusions.
In the Court of Appeal in New Zealand in Television New Zealand Ltd v Prebble [1993] 3 NZLR 513 at 518 Cooke P listed occasions when consistently with the privilege, evidence can be led. Such evidence is admissible provided it is used consistently with the parliamentary privilege in the following circumstances.
1.To prove material facts, such as the fact that a statement was made in Parliament at a particular time, or that it refers to a particular person: Hyams v Petersen [1991] 3 NZLR 648, 656; New South Wales Branch of the Australian Medical Association v Minister for Health & Community Services (1992) 26 NSWLR 114.
2.For the purpose of proving that a Government decision was announced in Parliament on a particular day: Roman Corporation Ltd v Hudsons Bay Oil & Gas Co Ltd (1973) 36 DLR (3d) 413.
3.In order to establish that a member of Parliament was present in the House and voted on a particular day: Forbes v Samuel [1913] 3 KB 706.
4.To establish that a report of parliamentary debates accords with the debate itself and is fair and accurate and therefore attracts qualified privilege in the law of defamation.
5.For the purpose of interpreting statutes. Pepper v Hart [1993] 1 All ER 42 is an example.
However, as Sir Robin Cooke then noted, “beyond that point the question becomes more difficult”.
Blackstone noted in his Commentaries (17th Ed (1830) Vol 1 at 163):
“……… whatever matter arises concerning either House of Parliament, it relates ought to be examined, discussed, and adjudged in that House to which it and not elsewhere.”
In Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 Lord Denman CJ said (at 114) “whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity” and Patteson J noted (at 209) “that whatever is said or done in either House should not be liable to examination elsewhere”. The inability to examine anything said in the Parliament was reaffirmed by Anderson J in Holding v Jennings [1979] VR 289 at 291 in these terms:
“It is clear law that no proceedings, either civil or criminal, may be taken Parliament, and a member is not examinable outside Parliament concerning against a member of Parliament for anything said or done by him in anything said by him in Parliament; see ex parte Wason (1869) LR 4 QB at 573; Bradlaugh v Gossett (1884) 12 QBD 271 at 275; Stockdale v Hansard (1837) 9 Ad & E 1; Dillon v Balfour (1987) 20 LR Ir 600; Blackstone, 1 Com 163; R v Creevey (1813) 1 M & S 273; Chubb v Salomons (1852) 3 Car & Kar 75.”
In R v Murphy (1986) 5 NSWLR 18 at 33 – 38, Hunt J permitted cross-examination of witnesses on their prior statements made to a Parliamentary Committee. That decision was disapproved in Prebble and I do not follow it. Other decisions suggest that statements in the House cannot be questioned in any form at all.
In Church of Scientology of California v Johnson-Smith [1972] 1 QB 523 it was held that the privilege denied reference to parliamentary statements by a member to support the plaintiff’s claim that the member’s defamatory statements outside Parliament had been motivated by malice thereby negating the defence of qualified privilege. Again reliance was placed on the inability to examine in any place statements made in the Parliament (at 529):
“What is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House. In my view this conclusion is supported both by principle and authority.”
Similarly in R v Turnbull [1958] Tas. SR 80 at 83 the Crown was not permitted to rely on statements made in the Parliament as evidence in the criminal prosecution of a former State Treasurer for corruption. In R v Jackson (1987) 8 NSWLR 116 it was held that evidence of what the accused had said in Parliament was inadmissible for the purpose of establishing that he had lied to Parliament as corroborative evidence of official corruption.
In about August 1989, the plaintiff had sufficiently recovered to consider seeking other employment. She then began to apply for positions. She applied for the position of Co-ordinator of the Domestic and Social Violence Service at St Kilda but did not succeed. Instead, she was offered a contract position for three months as project officer with that organisation. She accepted the position and was employed from 17 October to 23 December 1989. The duties involved less responsibility than her duties as Administrator at the Christies Beach Shelter. I find that the plaintiff took this position as a stop-gap while she was seeking more remunerative employment. She is entitled to be compensated for the lower level of income then received because her skills entitled her to a higher level of remuneration.
In the latter part of 1989, the plaintiff continued to seek more satisfying and more challenging employment, initially without success. The plaintiff gave evidence that she disclosed her experiences at the Christies Beach Shelter and the Report. She believed that that operated against her. She applied for the position of Co-ordinator of the North East Centre Against Sexual Assault in Ringwood, Victoria. That application was unsuccessful. She applied for the position of Training and Development Officer with the YWCA in Melbourne. The plaintiff said that she had been invited to apply for the position but that application also failed. The plaintiff said that she was informed by the relevant employee at the YWCA that her experience at the Christies Beach Shelter had caused the YWCA not to appoint her. In all, the plaintiff applied unsuccessfully to four organizations including the two just included.
In early 1990, she was successful in obtaining employment as the Co-ordinator of the Outer East Women’s Health Service at Ringwood, Victoria. Her duties were, broadly speaking, equivalent to those of her former position as Administrator of the Christies Beach Shelter. She remained in that position until she resigned on 26 April 1991. The plaintiff’s income in that position was approximately $29,200 gross. The plaintiff said that she had resigned because an inquiry had been conducted into the Shelter. That inquiry had recommended a restructuring of the administrative arrangements. She perceived that they would curtail and downgrade the responsibility and discretion of her duties as Co-ordinator. I find that her perception was, in all the circumstances, reasonable. On learning of the review’s recommendations, she had begun to consider other forms of employment. In February, she gave six week’s notice and resigned and left the employment on 26 April 1991.
In May 1991 the plaintiff commenced her own business as a counsellor, psychotherapist, lecturer and training consultant. She conducted that practice in part of her dwelling at St Andrews. It was submitted that she resigned her employment because she intended to commence business on her own account. I do not accept that contention. I find the plaintiff decided to resign in about February, 1991 because of the recommendations to be made by the review. At that time, she also decided she could no longer be employed in the public sector. She also had a perception that the inquiry concerning the service was politically motivated. I find that she was wrong in that perception. Her faulty perception was caused by the stress of the events associated with the Report which, I find, caused her to be unduly sensitive and suspicious of political interference with her work. It was one of the effects of her depression. She was therefore prone to read too much into events and to see political motivation for events which did not exist.
The plaintiff has continued to be self-employed since 1991. The following is a table of her income for the years ending 30 June 1990 to 30 June 2000. In 1990 and 1991, her income was predominantly the salary she received from paid employment. In the following years, gross income represents the total income earned by her business. In 1994, the plaintiff restructured the business, entering into partnership with Ms Williams, a woman with whom she had been living since 1992. The business is conducted from the plaintiff’s home at St Andrews, which is in the outer eastern suburbs of Melbourne.
Year Ending
30th JuneGross Income
Taxable Income Tax
$ $ $ 1990 20,539 5,529 1991 39,884 11,316 1992 69,174 27,832 5,700 1993 85,625 35,361 8,631 1994 101,801 47,473 13,441 1995 94,101 40,017 10,370 1996 99,835 26,004 5,800 1997 114,490 37,000 9,231 1998 100,982 32,844 7,660 1999 76,171 17,740 2,660 2000 76,514 17,628 2,560
I have already held that, but for the events of August 1987, the plaintiff would have returned to full-time employment in January 1988. The events of August 1987 exacerbated her existing condition so that she was unable to work in 1988 and for the first nine months of 1989. She is entitled to be compensated for lack of earning capacity in the period 1 January 1988 to 16 October 1989. In addition, she is entitled to be compensated for the lower level of income for the period October to December 1989. I will assess these losses in a moment. I will also examine whether the plaintiff suffered loss after 1991 and whether she will suffer any future economic loss.
Assessment of Damages
The plaintiff is entitled to be compensated in damages on her claims for misfeasance in a public office and for defamation. I deal first with the claim in defamation.
The plaintiff was defamed on three separate occasions, in the Report, and on the two broadcasts by TVB and the ABC. The plaintiff is entitled to recover in respect of each publication. As Mrs Roberts participated in the defamations broadcast on each of the television stations, she and each of the televisions stations are respectively liable, jointly and severally, to the plaintiff as joint tort feasors: Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580 – 581, 599 – 602. Each set of defendants is liable only for the damage that each has caused by its defamatory publication. When assessing damages, it is immaterial that others may have also caused injury: Dingle v Associated Newspapers Ltd [1961] 2 QB 162, approved on appeal [1964] AC 371. In this case the defamatory statements in the Report and on the two television stations were published within the space of two days. The television broadcasts were made within about one hour of each other. The effect of all three was substantially the same. Each contained the three defamatory imputations of financial mismanagement, criminal conduct and sexual and professional misconduct. In other words the defamatory effect of each was substantially the same. I do not think that any distinction should be made between the fact that the Report was more detailed. It is the sting of the defamation which is relevant, not its length. On some occasions the shorter libel may be the more effective and therefore more damaging.
Both the ABC and TVB sought to limit their respective liability for damages on the ground that the plaintiff’s reputation had been significantly damaged before each made its broadcast. That is to ignore the principles expressed in Dingle. In that decision Sellers LJ said [1961] 2 QB at 171:
“It has not been the law that a man pays less for his defamatory remarks which he cannot justify merely because someone else has published previously or concurrently the same libel.”
In the House of Lords Lord Radcliffe said [1964] AC at 396:
“A libel action is fundamentally an action to vindicate a man’s reputation awarded have to be regarded as the demonstrative mark of that vindication. If they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and a pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication. It is, I think, a on some point as to which he has been falsely defamed, and the damages well understood rule of law that the defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications of the same effect as his; it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling; and that, I think, is not and ought not to be the law.”
Each publication caused loss. It was as if the plaintiff was receiving a series of successive blows to her reputation. The ABC and TVB exacerbated the damage to the plaintiff’s reputation and her feelings of distress. However, the plaintiff is not entitled to be compensated in full by each set of defendants for the same damage to her reputation: s 11 of the Wrongs Act. Given the proximity in time between each publication and the similarity of the defamatory statements, the appropriate course is to apportion those damages equally between the three sets of defendants.
As noted in Gatley on Libel and Slander (9th ed) par 9.1, the purpose of an award of general damages for defamation is to compensate the plaintiff for the effects of the defamatory statement. Damages are at large. Compensatory damages may include actual pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be felt likely to result, from the harm which may have been done; they may also include the material injury to the plaintiff’s feelings – the natural grief and distress which the plaintiff may have felt at having been spoken of in derogatory terms: per Pearson LJ in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104-105. The principles were summarised by the majority in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 in these terms:
“As the appellant made no claim for particular economic loss as a result of either publication, the Court of Appeal was right in concluding that the jury’s verdicts could not be supported by reference to specific economic loss. Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.” (Footnotes omitted).
The principle that damages include lost earning capacity was confirmed in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 559-560.
The plaintiff’s claim for damages includes damages for loss of earning capacity. Shortly stated, the effect of her claim is that because of the stress she suffered she was disabled from working for a period of two years and, thereafter, her capacity to earn income was diminished. She could not earn income because she was suffering from the stress occasioned by the publication of the Report. The question is whether her claim for loss of earning capacity is too remote.
If the publication of a defamatory statement injures the reputation of a plaintiff so that his or her business or employment is adversely affected, damages are recoverable for that loss: Chakravarti; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 234, 252, 259. In principle, the position is no different if the publication of the defamation causes such a deterioration in health that the plaintiff is unable to work. The plaintiff is entitled to recover damages for injury to health caused by the publication of the defamatory statement: Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34 at 36 - 37; Brook v Flinders University of SA (1987) 47 SASR 119. If that injury to the plaintiff’s health means also that the plaintiff cannot work, there appears to be no reason in principle why damages should not be recovered for that further loss. I do not think that the loss is too remote. If the plaintiff is not able to recover for loss of income, she is at a disadvantage when compared to a plaintiff who is able to prove a loss of income caused by damage to his reputation. For those reasons, I find that the plaintiff is entitled to recover the loss of earning capacity. I will assess that loss in a moment.
The plaintiff, therefore, is entitled to recover compensation for the personal distress and hurt caused to her, reparation for the harm done to her personal and professional reputation and vindication of her reputation. She is also entitled to recover compensation for the deterioration to her health and her consequent inability to work. I acknowledge that there is a degree of overlap between these separate heads of compensation and care must be taken to avoid compensating the plaintiff twice for the same loss.
There is an obvious link between the impairment of the plaintiff’s earning capacity and damages for injury to her reputation. In one sense, it is not possible to draw a clear line between them since the allegations published in the Report related directly to the field in which the plaintiff was employed. However, such was the nature and breadth of the defamatory imputations that they would have had a profound effect upon her general reputation as well as upon her reputation in the area in which she was employed. One example is the unsubstantiated allegation of misappropriating funds. For these reasons, when assessing damages for loss of reputation and loss of earning capacity, it is necessary to take care to ensure that the plaintiff does not receive double compensation.
The ABC and TVB submitted that the broadcasts were not a significant cause of the plaintiff moving to Victoria. I do not accept that submission. It was the accumulated effect of the adverse publicity that resulted the defamatory publications which caused the plaintiff to move and, as both the ABC and TVB had contributed to it both are liable for that loss: SGIC v Medlin (1995) 182 CLR 1.
The ABC and TVB also submitted that they are not liable for any economic loss incurred by the plaintiff in being unable to find employment. They rely on the fact that their respective programs had not been broadcast in Victoria. They also submit that the effective cause for economic loss was the decision to withdraw funding which caused the Shelter to terminate the plaintiff’s employment. I accept the submission but not entirely for the reasons they advanced. Although the plaintiff’s employment was terminated in consequences of the withdrawal of funding from the Shelter, the plaintiff would have been able to obtain other employment. She was frustrated in that endeavour by the stress which the publication of the defamatory statements in the Report had caused her and the effect they had on her capacity to obtain employment. In other words, her loss was caused by the inclusion of the defamatory statements in the report and not by what had been broadcast by the ABC or TVB. For that reason I do not think that either television station is liable for the economic loss which had been incurred by the plaintiff other than for the cost of relocating in Victoria. In respect of the latter loss that should be apportioned equally between the three sets of defendants for the claim of defamation.
Loss of Reputation etc
These were serious libels. They charged the plaintiff and others at the Christies Beach Shelter with conduct quite inappropriate in any field of employment but the more so in a women’s shelter. The allegation of misappropriation of funds was, in effect, an accusation of theft. The allegations of sexual misconduct, intimidation, physical harassment and unprofessional conduct went to the very essence of the plaintiff’s employment as Administrator of a women’s shelter. When these allegations are viewed as a whole, it is difficult to think of a more serious defamation, particularly of a woman employed in a women’s shelter.
The Report received substantial publicity. It was also published among women’s shelters. The extent of the publicity must have added to the plaintiff’s distress and the damage to her reputation.
It is clear that the plaintiff suffered considerable distress. It seriously affected her health. It still distresses her. She was obviously distressed on two or three occasions in the course of her evidence when recounting particular events. When assessing the effect of the publication of the Report upon the plaintiff’s health, I have had regard to the fact that she was recovering from the work-related stress which caused her to be absent on worker’s compensation from 26 November, 1986. However, while the plaintiff was vulnerable to any additional stress, the force of these libels was so great that the plaintiff experienced a fresh, substantial, and devastating blow. It caused her to be unfit for work for almost two years. I am satisfied that she is still suffering from the psychiatric effects of the publication, albeit to a lesser extent, and is likely to continue to suffer it for some time. That will diminish in consequence of the completion of this action.
I accept the plaintiff’s evidence that she felt that she had been publicly humiliated. The allegations were extensive. These libels charged the plaintiff with conduct which struck directly at the work in which she was engaged. They not only went to the core attributes of the plaintiff’s personality and professional competence and as such are very serious allegations: John v MGN Ltd [1997] QB 586 at 607, but they also attacked her morality and integrity. They were so extensive and lacking in particularity that the plaintiff had no reasonable means of answering them. Her reputation must have been severely affected. For all of those reasons, it was entirely reasonable for the plaintiff to leave South Australia and reside in Victoria. That meant that she lived apart from family and friends who could have provided the emotional and other support she needed at this time.
I find that the plaintiff is an intelligent and resourceful woman and, in every respect, before these events was a person of normal fortitude. She had a belief, engendered by her father, that through political activity she could bring about a just society. That belief was shattered by the events of 11 August, 1987. I find also that she threw herself into her work and was totally committed to the cause of women’s shelters. She worked long hours. Before the publication of the Report, the plaintiff had been an outgoing person who enjoyed social interaction. She used to play in a folk band. However, as a result of the publication of the Report, she had become quite reclusive, ashamed to see others apart from close friends and family.
The publication of the Report was a devastating blow and caused her to suffer severe depression. It has left a psychological and an emotional scar. I have carefully scrutinised her account of the emotional and psychological damage to see if it has been exaggerated. I do not think it has. Although she had earlier suffered stress, the major cause of her psychological condition in late 1987 and subsequent years was the publication of the allegations concerning her in the Report.
I am satisfied that the emotional stress caused by the Report still exists, albeit a good deal less debilitating than it was in 1987 and 1988. She stopped seeing Dr Valent in 1991 shortly before she went into business on her own account as a counsellor.
From time to time, the plaintiff returned to Adelaide to see her parents or to attend to business associated with the decision to withdraw funding. That included instructing solicitors in relation to the CAC prosecution, appearing in court in respect of that prosecution, and appearing before the Select Committee. Those visits, which were associated with the Report, reactivated her feelings of depression. After events such as the publication of the Report of the Select Committee, the plaintiff was particularly active for a short time responding to those events. However, she remained depressed.
When assessing the plaintiff’s loss, I have had regard to the fact that, had the Report simply recommended withdrawal of funding from the Shelter, say, because of its failure to sign the Financial Agreement, the plaintiff would also have been distressed. However, she would have perceived that as a political battle fought and lost. The distress would have been of quite different kind from the distress suffered by the serious nature of the unsubstantiated allegations and quite minor compared with it.
In my view, the publication of the unsubstantiated allegations was a gross calumny upon the reputation of the plaintiff. She has had to endure it for some 15 years. It calls for a substantial award of damages. I assess damages in the sum of $225,000 for the injury to and vindication of her reputation, for her personal distress and hurt, and for the effect upon her health. It is appropriate to measure separately her economic loss. The plaintiff has lost income while at the same time having to bear the odium of attack upon her reputation. I repeat that, in doing so, I am not twice compensating for loss of reputation.
Economic Loss
I am satisfied that the plaintiff would have found it extremely difficult to obtain suitable employment in South Australia. This is an instance where the unfortunate impression left by a libel may last a lifetime: Hill v Church of Scientology (1995) 126 DLR (4th) 129 at 176; see also Ley v Hamilton (1935) 153 LT 384 at 386, where Lord Atkin said “it is impossible to track the scandal, to know what quarters the poison may reach.”
For the reasons given earlier, the plaintiff would have returned to work in January 1988. She did not work again until 17 October 1989. She is entitled to be compensated for the loss of earnings in that period. As already mentioned, it was reasonable for the plaintiff to leave South Australia. The most appropriate measure of the plaintiff’s loss is, therefore, the salary which the plaintiff received as Co-ordinator of the Outer East Women’s Health Service. The only direct evidence of that salary is contained in the plaintiff’s group certificates attached to her income tax returns for the years ending 30 June 1990 and 1991. Her salary in 1990 was approximately $678 per week, which increased to about $790 per week in 1991. For the purpose of assessing loss of income in 1988 and 1989, it is appropriate to take the lower of those two figures. The plaintiff’s group certificate shows that she was paying approximately $195 per week as income tax. The net income of the plaintiff would therefore have been $483 per week. I allow the plaintiff damages at the rate of $483 per week for 93 weeks, a total of $44,919.
The plaintiff is also entitled to be compensated for the lower level of remuneration she received when employed by the Domestic and Social Violence Service in the ten week period from 17 October to 23 December 1989. Her skills warranted a higher level of remuneration. The Service paid a salary of $495 per week. A fair measure of that loss is the difference between that salary and the salary she received as Co-ordinator of the Outer East Women’s Health Service. The plaintiff’s group certificate shows that the net income from the Domestic and Social Violence Service was about $393 per week. The difference is therefore $90 per week, producing a loss of $900 for the ten week period.
There are difficulties in assessing the plaintiff’s claim for any further economic loss. I think the plaintiff did not understand the manner in which she should present her claim for damages. The evidence shows that she works 25-30 hours per week. Her fees are at a level below the list of fees published by the Australian Association of Social Workers. The plaintiff’s fees are $80 per hour. The Association’s schedule of fees ranges from $95 per hour for individual work and supervision to $120 for family therapy and $130 per hour for consultancy, education consultancy and group work. There is evidence which suggests the plaintiff only works 25-30 hours per week because her mental resources, affected by the stress she has suffered, do not allow her to work any longer hours in this stressful occupation. Her disability prevents her for undertaking work in the more remunerative area of group counselling. It may be that the plaintiff has a claim for diminished earning capacity based on her mental disability. But she does not make such a claim. Instead, she claims that her experiences in South Australia and the effect of the Report were so widely known that she could not hold down a position in the public sector anywhere in Australia and that she would have received a higher level of remuneration in the public sector.
While I accept that the plaintiff had a perception that she could not obtain, or retain, employment in the public sector, I am not satisfied that in fact she could not have been employed in that sector. The plaintiff was able to obtain employment at the Outer East Women’s Service at a senior level. It indicates that she was capable of securing employment at that kind of level. Her perception that there was a political motivation for the review of that Service was not established. I find that it was a false perception on her part but, nevertheless, a perception caused by her mental condition and her extreme sensitivity in consequence of the publication of the Report.
However, her decision to establish her own private practice was caused by her perception as to her inability to be employed. As that false perception was caused by her mental condition, she is entitled to be compensated for a reduction in income. In other words, her mental depression has caused these false perceptions and that in turn has caused her to seek to establish a private practice. The plaintiff’s taxable income fell during the first year while she was establishing the practice. It is reasonable to award her compensation for that loss of income. I award $10,000 for that loss.
There are difficulties in assessing the plaintiff’s loss thereafter. The plaintiff has structured her financial arrangements to reduce her liability to income tax. She is not to be criticised for that. However, the restructuring of her financial expenses makes it difficult to determine whether the plaintiff has earned less in private practice than she would had she been employed in the public sector. Another difficulty stems from the fact that the plaintiff only works 25-30 hours per week. She has not explained why that is so. She does not claim that her disability prevents her from working longer hours. Those difficulties are further compounded by the evidence of Ms Brennan that the plaintiff has skills which make her employable as a consultant or counsellor in re-training programs, work which could be undertaken by the plaintiff in private practice and which the plaintiff intends to undertake. The plaintiff holds the degree of Bachelor of Social Administration. She is a qualified teacher and has a great deal of experience in social work, predominantly in the field of counselling women who have suffered domestic violence. These skills are equally suitable for employment in the private as well as public sectors. These factors all add to the difficulty of assessing the plaintiff’s loss. The absence of evidence on these issues may reflect the plaintiff’s difficulties as a layperson in proving all aspects of her claim. However, I cannot proceed in the absence of evidence. For these reasons, it is not possible to identify any further loss in the years 1992 to 1998.
The plaintiff proved the Australian Services Union Crisis Assistance Supported Housing (SA) Award as at 14 June 2001 but that did not carry the position much further. I find that this Award would represent the level of salary paid to employees in a women’s shelter. It has six levels of remuneration, the highest being $47,947 per annum. However, there is no evidence whether the highest level represents the salary paid to an Administrator. There is no evidence of the award in earlier years. That fact, combined with the plaintiff’s structuring of her financial arrangements, makes it difficult to determine whether the plaintiff earned less than the highest level under the award at least until 1998.
It is apparent that the plaintiff’s earning capacity diminished in 1999 and 2000 because of the time she has had to devote to preparing for this trial. In addition, she was unable to conduct her practice whilst engaged in this litigation. That is effectively a period of at least six months. However, I think those losses are too remote to entitle her to be compensated in damages.
The plaintiff tendered a report from Morgan Banks Limited, an executive recruitment agency now called TMP Worldwide Resourcing. That report noted levels of salary which could be earned in fields in which the plaintiff might seek to gain employment. The evidentiary value of the report is very limited. Although it showed that the plaintiff might have been able to earn between $49,000 per annum and $69,000 per annum if employed in a government health service, it did not specify the nature of the position. The report also noted that private practitioners in areas of counselling and psychotherapy holding the plaintiff’s qualifications charge between $100 per hour and $150 per hour, a level of fees broadly consistent with those listed in the schedule published by the Australian Association of Social Workers. In the result, the report did not assist.
For the above reasons, it is not possible to assess any future loss of earning capacity.
Aggravated Damages?
The plaintiff claims aggravated damages. The defendants who are liable for damages for defamation are liable also for aggravated damages only if it has been established that their conduct was improper, unjustifiable, or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 514; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 per Toohey J at 237 - 238, and has caused harm to the plaintiff. I refer to the comments earlier in these reasons on the issue of malice. The failure of the Review Committee to state all of the relevant facts so that the reader was apprised of the true position and its failure to make any realistic assessment of the unsubstantiated allegations, when the means to do so were available, indicates improper conduct. However, I do not believe it caused any additional loss to the plaintiff. The plaintiff had anticipated that the Report by the Review Committee would be critical of her. In a sense, her expectations were fulfilled. I do not think her extensive suffering as a result of the Report was any greater by reason of the conduct of the Review Committee defendants.
I have also considered whether the plaintiff should be awarded aggravated damages by reason of the plea of justification by the Review Committee defendants other than Ms King. Two particulars were abandoned very early in the trial. The particulars concerning the auditors and the Shelter being inoperative for a protracted period when it shifted premises were persisted in notwithstanding the evidence concerning each, which has already been noted and which was well known to the defendants. However, other particulars were established but they were, in broad terms, limited to the failure of the Shelter to sign the Financial Agreement and the continual deficits of the Shelter. With a good deal of hesitation, I find that the plaintiff is not entitled to aggravated damages on this ground because the compensatory damages have been assessed in regard to the continuing harm of the damage to the plaintiff’s reputation: cf Coyne v Citizen Finance Ltd at 237 - 238. A further reason for this conclusion is that aggravated damages are intended to compensate the plaintiff, not punish a defendant.
Exemplary Damages?
The plaintiff also claims exemplary damages for the defamation. There is a good deal which suggests that the conduct of the Review Committee defendants was so reprehensible that exemplary damages should be awarded, particularly as grounds existed on which to withdraw funding without descending to a personal attack on the plaintiff and other members of the staff and management committee of the Shelter. However, as Lord Devlin noted in Rookes v Barnard, exemplary damages will only be awarded if the award of compensatory damages is inadequate to punish the defendant for his or her outrageous conduct. The award in this case is adequate punishment for the outrageous conduct of the defendants.
For these reasons, I do not award either aggravated or exemplary damages for the defamation.
Damages for Misfeasance
The plaintiff is also entitled to be compensation by Dr Cornwall for the loss she incurred in consequence of his misfeasance in a public office. The injury to her reputation and her economic loss and consequence of that wrong has been compensated by the award of damages in defamation. There is no other identifiable loss for which she should be compensated for this wrong. In the circumstances, I think the appropriate course is to require that Dr Cornwall be jointly liable for the damages and defamation. It is possible also to make an award of either aggravated or exemplary damages: Kuddus v Chief Constable of Leicestershire Constabulatory [2001] 3 All ER 193. It is not appropriate to award aggravated damages but I think an award of exemplary damages should be made to mark the disapproval of Dr Cornwall’s abuse of his position, to punish him for his outrageous conduct and to deter others from like conduct: Rookes v Barnard [1964] AC 1129 per Lord Devlin at 1228. Awards of exemplary damages ought to be moderate: Rookes v Barnard per Lord Devlin at 1227 – 1228. I think an award of $25,000.00 is appropriate.
Special Damages – Medical
In addition, the plaintiff has suffered other pecuniary loss which I call special damages, not in the sense of that expression in the law of slander, but in the sense of that expression when contrasted with general damages.
The plaintiff consulted a number of medical practitioners and chiropractors. She claims the cost of those consultations. However, her claim includes costs which are either too remote or not caused by the stress she suffered. The medical, paramedical and pharmaceutical expenses listed below are those which I find were caused by the stress.
The plaintiff also incurred substantial expense in fees to counsellors and psychotherapists. She was also consulting psychiatrists at the same time. In addition, some of the fees for counselling seemed to have been incurred after 1991. I think by then she had made a substantial recovery as is evidenced by the fact that she had resumed employment. Another difficulty with the fees for counselling is that the accounts have not been produced. I do not in any sense discount the fact that the plaintiff may have suffered considerably and for that reason was seeking whatever assistance was available to her. Nevertheless, I do not think that the fees to counsellors can be allowed in the absence of proof as to the need for them and proof of the amount. Neither was forthcoming. I have no alternative but to discount the claims for fees to counsellors and psychotherapists. On the same basis, I do not allow fees for attending a retreat organised by a church.
The medical and paramedical fees which are allowed are as follows.
Dr Valent
Dr Gauvin
Dr Berry
Dr Goldenberg
Dr Garnett
Dr Jenkinson
Dr Laing
Dr Padman
Dr Yewers
Dr Brown
Dr Jeganathan
Ms Lovett – Chiropractor$15,000.00
$2,648.50
$299.75
$228.80
$548.35
$781.25
$15.85
$42.20
$225.40
$664.00
$21.00
$475.00TOTAL
$20,950.10
In addition, I allow $650.00 for pharmaceutical expenses.
Special Damages – Other
After deciding to leave South Australia and reside in Victoria, the plaintiff sold her house in Adelaide and purchased the house in which she now resides at St Andrews. I find that the costs of selling the house in South Australia and acquiring another and the associated removal costs were caused by the events of August, 1987 and are not too remote. It is quite reasonable for a person who has been publicly humiliated to reside in another place. Some of the costs were not formally proved but the amounts claimed are plainly reasonable and I allow them. Those which were not strictly proved are marked “(est.)”, meaning estimated. I allow the costs of relocation as follows.
Removal costs (est.) $1,250.00 Agents commission on sale of SA house $3,856.00 Conveyancing costs on sale of SA house (est.) $160.00 Stamp duty on house in Victoria $6,940.00 Conveyancing costs on house in Victoria (est.) $800.00 Total
$13,006.00
The plaintiff claims the cost of airfares between Adelaide and Melbourne. She estimates that she travelled to and from Melbourne on 44 occasions. She claims one-half of $300 per trip. There are no details of when these flights were made. There is no detailed proof of the cost. A good number of those trips would have been associated with the prosecution of this action. They are more properly recoverable on a taxation of costs. Some would have been associated with the CAC prosecution and the appearances before the Select Committee. They are either not caused by the Report or are too remote. For these reasons, I do not allow the claim for airfares.
The plaintiff also claims for telephone, stationery and office expenses. These are costs associated with a prosecution of her claim and are more properly to be recovered on a taxation of costs.
The Total Award
The total award of damages payable to the plaintiff is
Damages for injury to reputation etc $225,000.00 Damages for misfeasance 25,000.00 Economic Loss
- Loss of earnings 1988 to 1989
- Compensation for reduced earnings Oct – Dec 1989- Loss of income while establishing private practice
44,919.00
900.00
10,000.00
305,819.00Medical and other fees 20,950.10 Pharmaceutical costs
650.00
Removal costs
13,006.00
Total
$340,425.10
The plaintiff is also entitled to interest. I will hear the parties on that question and on the terms of the order.
6
12
0