Sanders v Snell ( S142-97) App

[1998] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 1997

B e t w e e n -

WILLIAM WINTON SANDERS

Appellant

and

LISLE DENIS SNELL

Respondent

GLEESON CJ

GAUDRON J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 26 JUNE 1998, AT 9.35 AM

(Continued from 25/6/98)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Garling.

MR GARLING: If the Court pleases. Might I attend to some queries first that fell from the Court yesterday. Your Honour the Chief Justice shortly before the adjournment raised a question about an article written by Professor Finn. Our best researches, your Honour, have not identified an article at the time that your Honour was referring to. We have found an article by Professor Finn (1977) 51 ALJ 313 which may be the article your Honour had in mind. It is entitled “Public Officers: Some Personal Liabilities”, although it is some five or six years earlier than the establishment of the ICAC in New South Wales. That is an article, your Honour, which deals principally with offences by public officers rather than torts, but there may be some remarks at page 315 in the right‑hand column under the heading of “Official Misconduct” which was the remark that your Honour had in mind. They would suggest that for an indictable offence to be committed, there must be a positive state of mind which led to the commission of the crime. Professor Finn says this:

If his refusal -

speaking of a refusal to act -

stems from an honest error of judgment then no matter how wrongheaded his decision, he is not indictable ‑ ‑ ‑

GLEESON CJ:   As you pointed out yesterday, people involved in public administration are routinely subject to challenges to the validity and sometimes the legality of their actions and some of them take a more cautious attitude to risk taking than others, but there is a big difference between taking a risk that you may be wrong and doing something knowing that you have no power to do it or knowing that it is unlawful.

MR GARLING: Yes. We think that is the best way we can assist your Honour. There is a subsequent article in (1992) 66 ALJ 139. It is entitled “The Citizen, the Government and ‘Reasonable Expectations’”, which may be more relevant to the discussion I had with Justice Gaudron during the course of yesterday’s argument. It does not touch the misfeasance point directly, your Honour.

GLEESON CJ:   Thank you.

MR GARLING:   Your Honour Justice Gaudron raised a question yesterday in the course of discussion about whether perhaps the more appropriate tort in this case was unlawful interference with contractual relations.  Your Honour asked whether that was litigated and I gave your Honour a less than full answer, although I took the opportunity of checking the matter overnight.  Our submission is it was not, and may I give your Honour five references to that.  The first is a letter of particulars which is to be found at volume 4, page 825 at line 35, where Mr Cook, when asked to identify the causes of action upon which his client was proceeding after the statement of claim, on that page at line 35 identifies three causes of action pleaded:

(i)   A tort inducing a breach of contract

(ii)  A tort based on action on the case known as the “Beaudesert” cause of action.....

(iii) A tort for abuse and misuse of.....a public officer.

The Beaudesert cause of action, your Honour, was not proceeded with at trial because by that time the Court’s decision in Mengel had been handed down between that letter and the trial.

The second reference I wish to give your Honours - I do not wish to take your Honours to it - is that the defendant perceived that the case was being run on the two torts outlined in that letter, and that is to be found in the commencement of its final submissions in volume 1, page 66, line 50, to page 67, line 11.  The trial judge dealt with the case on the basis only of inducement of breach of contract, and that is to be found in his Honour’s judgment in volume 4 at page 899, line 25, and following in the discussion of the authorities to which his Honour refers, which ranges over a couple of pages.  Fourthly, the notice of cross‑appeal filed by Mr Snell did not raise any complaint about a different cause of action not being dealt with.  Your Honours will see that at volume 4, pages 939 to 940.  No notice of contention was filed that the judgment could be supported on the basis of the other tort.  The Full Court did not deal with any such separate cause of action, and your Honours will see that at page 942, line 34.

Your Honour Justice Hayne raised a question about cross‑examination with respect to the evidence at page 517 in volume 3 which goes over to page 518.  It is our submission that there was no cross‑examination directed to that evidence.  Your Honour also might have in mind a piece of evidence in‑chief of Mr Sanders at page 513, line 31, about Mr Sanders’ state of mind which was also not cross‑examined upon directly.  The failure to cross‑examine on those matters was referred to in submissions at the trial.

There was, I should say, your Honour, some general cross‑examination on two issues.  One was conduct by the appellant with regard to certain immigration matters.  In a previous assembly Mr Sanders had been involved with immigration matters.  That is to be found at page 524, line 45, but that is subject to a comment of the trial judge at page 526, line 35.  Some cross‑examination about Mr Sanders’ knowledge of the requirement for a number of members of the Tourist Bureau - we do not regard that as cross‑examination on those matters that your Honour raised, but peripherally they may go.  That is to be found at page 545, line 25, to page 546, line 29.  We respectfully remind your Honours, as we drew your Honours’ attention to it yesterday, there was no finding by the trial judge of absence of knowledge or reckless indifference - page 924, line 5.

GAUDRON J:   On a related issue, Mr Garling, how does one reconcile the requirement that the tortfeasor actually induce a breach of contract with the statement or requirement - perhaps in terms of this case the finding being, to put it in shorthand, that Mr Sanders would have had to direct them to terminate in breach of contract.  How does one reconcile that with the notion that it does not matter if the tortfeasor does not know the terms of the contract?

MR GARLING:   That did not arise in this case because Mr Sanders was aware of the contract.

KIRBY J:   He had actually called for it, had he not?

MR GARLING:   He had called for it and he had seen it and he had read it but, in answer to your Honour’s question, I think it is reconciled in this way, that actual knowledge can be replaced by - let me rephrase that.  The requirement for actual knowledge can be fulfilled by a finding that there was wilful blindness or reckless indifference.  In other words, if the tortfeasor knew there was a contract and knew, for example, it was in writing and knew or had knowledge that the terms of it would refer in some way or other to termination and deliberately refrained from calling for the contract or examining it or inquiring what the terms said, the Court would find that that conduct was the equivalent of actual knowledge.  I think that is the way it is reconciled.

GAUDRON J:   Thank you.

MR GARLING:   Your Honour Justice Callinan, in the course of discussion yesterday, asked about whether there was evidence from Mr Snell whether the taking of two months pay in lieu of notice rather than continuing to attend for work was regarded by him one way or the other in what way.  There was no evidence in‑chief and no cross‑examination on that issue.  I did say I would tell your Honour with respect to the final page of exhibit K, the transcript of conversation, whether there was cross‑examination about that discussion about gratitude.  That is to be found in volume 2 at page 333.

There is one final matter.  Your Honour the Chief Justice - I was reminded of it just a moment ago - in considering exhibit K, the transcript, and the opening words, asked some questions about whether it was possible there was some previous discussion to which the opening words may have referred.  Having searched the transcript, the only other reference in the evidence to which that may relate - and it is unclear that it does - is a question that was put in cross‑examination to Mr Sanders in volume 3 at page 622.  If your Honours would go to that, it needs a very brief explanation.  Just under line 5 - this is in cross‑examination of Mr Sanders - there are some questions about discussions with Mr Brown and the answer is, “Probably, yes”.  Then this question is found:

On the afternoon of 18 June -

your Honours will recall that that is the day before the actual dismissal -

do you recall receiving a communication from Mr Brown either by telephone or directly that Mr Brown had spoken to Mr Snell in the morning about a question of his possible resignation and he said he had decided to let matters take their own course; do you remember Mr Brown coming in and telling you about that?---Yes, something about that, yes.

Then there were some questions about whether that was on the instructions of Mr Snell.

GAUDRON J:   Can I just interrupt you there.  Which Mr Brown are we talking about?

MR GARLING:   This is the member of the Tourist Bureau, your Honour.

GAUDRON J:   Thank you, yes.

MR GARLING:   Then there are some questions as to whether that was instructed by Mr Sanders.  He denied that.  The Tourist Bureau Mr Brown was not called to give evidence to assert that such instructions were given but, your Honour, in the context that the discussion in exhibit K takes place the following day and one of the participants in the discussion is Mr Brown.  There seems to have been a conversation the day before between Mr Brown and Mr Snell and that may have been what Mr Snell had in mind.  But, other than drawing your Honours’ attention to that, I cannot find anything more specific.

GLEESON CJ:   Thank you.

MR GARLING:   Your Honours, at the adjournment yesterday I provided to your Honours the balance of references to the question of misfeasance in Mengel’s Case.  I do not wish to take your Honours to that.  It may be more profitable if I take your Honours for a very short period to the decision of the Court of Appeal in New Zealand in Garrett’s Case (1997) 2 NZLR 332, a copy of which I gave your Honours yesterday. This was a claim based on the tort of misfeasance in public office. Your Honours will note there is a summary in paragraph 1 of the headnote with respect to the necessary elements of the tort of misfeasance. We would submit ultimately that the analysis that the court comes to is useful and correct analysis of the requirements of the tort.

Your Honours, the first significant part of the judgment deals with various facts.  To be very brief, the complaint by Ms Garrett was that she had been raped by a police constable in a police station and that there had been a cover‑up by that police constable’s more senior officers by a deliberate failure to investigate and take action.  I have put that very shortly.  The facts are very detailed and run over a very significant number of pages, but that was the background to it.  There was a jury trial.  The plaintiff lost at trial and sought to overturn the verdict by complaining about the misdirection of the trial judge with respect to the tort.  Their Honours come to that at page 344.  Your Honours will see at line 5:

The complaint of misdirection is founded on a submission that it is sufficient to establish the tort to prove that there was a knowing breach of duty which caused harm or loss which was reasonably foreseeable.  It was submitted that the issues should have been drawn accordingly and the jury expressly directed -

That of course was a view which did not commend itself to the joint judgment in Mengel at least because that would place the tort at the end of the spectrum akin to negligence rather than at the other end of the spectrum of intentional torts.  Your Honours will see there are some general remarks at line 22 on that page at the paragraph commencing, “Proceedings for the tort of misfeasance”, and their Honours at line 25 refer to the concept of “targeted malice” and go on to say:

But the tort is no longer so confined.  It can also be committed by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff.  As will appear from the following discussion, “knowing” in relation to both the breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do.

GLEESON CJ:   That expression “act in breach of duty knowing about the breach” may be ambiguous.  Does that expression “knowing about the breach” mean knowing about the facts or the conduct which in law constitute a breach or does it mean knowing that and in addition knowing that in law it constitutes a breach?

MR GARLING:   The latter, your Honour, because the facts will always be within the knowledge of the tortfeasor, he presumably being the perpetrator of them.  Then their Honours point to “Some formulations of the ingredients of the tort” being more relaxed - that is to say, the element of reasonable foreseeability.  Their Honours deal with Bourgoin’s Case, and your Honours will pardon me if I do not read the whole of that part to your Honours.  Their Honours then come at page 346 to two more recent decisions, that being the decision of this Court in Mengel and the decision of a single judge in the Commercial Court in England called Three Rivers District Council v Bank of England.  Their Honours discuss Mengel’s Case.  I do not delay to review the whole of that discussion.  At page 348 their Honours come to discuss the Three Rivers District Council Case, which is the single judge in England who also addressed Mengel’s Case and some remarks in it.  It is fair to say that what one takes from the Three Rivers District Council Case is to be conveniently found at page 348, line 35.  I do not propose to take your Honours to that case - it is a very lengthy case - but I think this judgment accurately highlights the significant part of it.

It was Clarke J’s conclusion that it is not enough for the plaintiff to prove foreseeability of damage by a public official who knowingly exceeds his or her power.  He -

that is Justice Clarke -

commented at p578:

“. . . an officer may do something knowing it to be unlawful and in circumstances where it was reasonably foreseeable that a class of persons might suffer loss, but he might nevertheless do it in the best interests either of another class of persons or indeed of the plaintiff or of the class of persons of whom the plaintiff is one.  In my judgment such a person would not be acting in abuse of power, whereas it is abuse of power which is the essence of the tort.”

Then their Honours go on at page 349 to set out how Justice Clarke summarised the tort in the numbered paragraphs at the top of the page.  Then at the bottom of page 349 can I invite your Honours’ attention to line 39 where their Honours say:

We are in respectful agreement with Clarke J that it is insufficient to show foreseeability of damage caused by a knowing breach of duty by a public officer.  The plaintiff, in our view, must prove that the official had an actual appreciation of the consequences for the plaintiff, or people in the general position of the plaintiff ‑ ‑ ‑

GAUDRON J:   In this case though, there would be no difficulty about a general appreciation of the consequences to the plaintiff.

MR GARLING:   Well, financial loss, yes, because it cannot be said that the contract was terminated ‑ ‑ ‑

GAUDRON J:   Just depriving him of the benefit of the contract is sufficient.

MR GARLING:   If your Honour describes that in that way, yes, it clearly falls within that because the terms of the direction itself would demonstrate that, but that is not necessarily the same as financial loss.

HAYNE J:   I do not understand then the point that you seek to make based on this part of the discussion of Mr Justice Clarke’s judgment.

MR GARLING:   The point we seek to make is that the tort cannot be complete by a knowing act beyond power accompanied by the fact of loss.  There has to be an intention in the tortfeasor to cause the loss or a deliberate course of conduct in the appreciation of the consequences for the plaintiff.

GLEESON CJ:   That might be an interesting and perhaps difficult question in a case where an act done to protect the turkey farmers of England damages the turkey farmers of France and the question is whether what you were intending to do is help the English turkey farmers or damage the French turkey farmers, but in this case that is not a problem that arises, is it?

MR GARLING:   Yes, it is, your Honour, for this reason, that the action was framed in this way:  is it for the benefit of the administration of the Bureau and public administration generally that the executive officer remain, or is it for the benefit of the Bureau that he be removed on the one hand and the consequences for the officer on the other.  What had to be demonstrated in this case was that it was Mr Sanders’ intention that either there was no basis upon which he could contend that the Bureau would be benefited by the termination of the contract but rather the intention was to cause loss or harm to Mr Snell.

GAUDRON J:   I think you are confusing two things perhaps, Mr Garling.  If it were the case that Mr Sanders did not know his act was unauthorised, and it turns out that it was, and he did it for the precise purpose of depriving Mr Snell of the benefit of the contract, then you would have the tort made out because of the driving malice, or the actuating motive, I think.  I do not think there is any doubt about that on the cases but, if he did it knowing it was, the question arises:  if Mr Sanders did it knowing it was unauthorised, what then further was required?  If it is simply knowledge that it will have that consequence, why does that not satisfy precisely what was being said by Justice Clarke?

MR GARLING:   Because, your Honour, of the extract at the previous page, 348, from Justice Clarke’s judgment at the bottom of the page.  There is an intermediate question we would put, which is the intention of the tortfeasor.

GAUDRON J:   Accompanying knowledge of - we will use “illegality” for a moment as a comprehensive term - of the illegality of his act or her act.

MR GARLING:   It must be actual knowledge of illegality.

GAUDRON J:   Yes, and you say must be a deliberate intention to harm the person or a class of persons?

MR GARLING:   Yes.

GAUDRON J:   And not simply an act which of its nature is bound to have that consequence?

MR GARLING:   Yes, your Honour.

GAUDRON J:   Or is virtually certain to have that consequence, likely to have that consequence, is actually seen as likely to have that consequence?

MR GARLING:   The term “foreseen” I think in the context in which it was used in Bourgoin is to be differentiated from the concept of foreseeability in negligence.

GAUDRON J:   So, even if you know that it will have that consequence, you say it must go further?  There must be an actual intent.

MR GARLING:   No, your Honour.  Your Honour is putting it a little too highly.

GAUDRON J:   I am just trying to find out.  What do you say?

MR GARLING:   We put aside the “targeted malice” issue.  We say “knowing breach”, step one.  By the way, your Honour, we submit that is not satisfied here for all sorts of reasons.

GAUDRON J:   Yes, I would have thought that was your strongest point in ‑ ‑ ‑

MR GARLING:   I am indebted to your Honour for recognising that.  We say “knowing breach”.  Secondly, it can be fulfilled in this way:  intention to cause harm and acts which cause harm.  That would be one part through which the tort could be established.

GAUDRON J:   Then you would not have - to this particular person or not?

MR GARLING:   To this person or a sufficiently small group of which this person was a member.

GLEESON CJ:   Are you saying that if when he was asked those questions in‑chief your client had said, “No, I never believed for a moment that I had the power to do this; I knew it was unlawful”, you would then be able to resist this action by saying, “Well, he was doing it to help the tourist business, not to harm”?

MR GARLING:   Yes, doing it for the very best of motives.  We would put it that way because of the way that Justice Clarke puts it at page 348 in that extract.

GAUDRON J:   It seems to be a bit inconsistent with earlier decisions and with what was said by this Court in Mengel, albeit obiter, because the issue in Mengel was whether you had to have actual knowledge.

MR GARLING:   Yes, that is so, your Honour.  The third alternative, and just completing my answer to your Honour Justice Gaudron, is that, if you have a knowing breach accompanied by a set of actions flowing from the knowing breach, the inevitable consequence of which is harm to the plaintiff or a class in which the plaintiff is to be found ‑ ‑ ‑

GAUDRON J:   Well, that is what you had here, is it not?  If there was a knowing breach and if harm is depriving Mr Snell of the benefit of the contractual arrangement which he had, then it has to be taken in any event that that was intended.  It was intended to deprive Mr Snell of the benefit of his contract with the Bureau on any view, was it not?

MR GARLING:   That was the inevitable consequence of the direction.

GAUDRON J:   It was not only the - the motive for which it was done is irrelevant, surely.  It was intended to bring about that which in fact happened in the sense that - it may not have been intended to bring it about in the way that it happened, but it was intended to bring it about.

MR GARLING:   Yes, your Honour, but we say ‑ ‑ ‑

GAUDRON J:   Intended to deprive him of the benefit of an ongoing contractual relationship.

MR GARLING:   Yes, your Honour, but that may not be actionable harm or loss because, for the reasons we put yesterday, the contract in this case was an unlimited in time contract with a provision for termination without cause.

GAUDRON J:   In putting that submission, you are overlooking the analysis of this Court in Amann Aviation.

MR GARLING:   We do not intend to do that, your Honours, but we are not talking of the context of a breach of contract; we are talking of the context of tort.  It is not every harm which gives rise to an actionable tort.

GAUDRON J:   Let me be more precise.  Absent the interference of the Minister, there was a chance - how it be quantified is a matter for another time, I suppose - that Mr Snell would continue to enjoy the benefit of his contract.

MR GARLING:   I could not resist that.

GAUDRON J:   So, on any view, he lost the benefit of a chance.

MR GARLING:   I could not resist that.  The claim was never quite put that way but I could not resist that formulation.

GAUDRON J:   But that is in terms of what is actionable harm.

MR GARLING:   Of what the actionable harm was, that is so, your Honour.  Can I then just invite your Honours’ attention to the conclusions of the New Zealand court at page 350, line 29.  I am sorry, I should just note at line 6 their Honours deal with the purpose behind the imposition of tortious liability, then their Honours at line 29 say this:

In our view this intentional tort should not be allowed to overflow its banks and cover the unintentional infliction of damage.  In many cases the consequences of breaking the law will be obvious enough to officials, who can then be taken to have intended the damage they caused.  But where at the time they do not realise the consequences they will probably not be deterred from exceeding their powers by any enlargement of the tort.  As Clarke J observes, they may well think that they are acting in the best interests of those persons whom they actually have in mind.  In any modern society administration of central or local government is complex.

I do not know why their Honours restrict that to local government, but anyway -

Overly punitive civil laws may oftentimes deter a commonsense approach by officials to the use or enforcement of rules and regulations.  We prefer to err on the side of caution and not to extend the potential liability of officials for causing unforeseen damage.  To do so may have a stultifying effect -

Then your Honours ought just note the paragraph at line 3 on page 351.  Then their Honours address the factual conclusions.  We would respectfully submit that that decision represents a sensible description of the bounds of the tort as it has developed.

KIRBY J:   Do any of the academic writers say things similar to that which the Court of Appeal says at page 350 about the undesirability of the tort overflowing its banks?

MR GARLING:   Well, your Honour, that is certainly consistent with what the joint judgment at least in Mengel in this Court said.

KIRBY J:   I realise that.  I am asking about the academic writers.

MR GARLING:   I cannot answer that question, your Honour.

KIRBY J:   It seems to be a common warning signal both in this country in Mengel, in England in Three Rivers and in New Zealand in Garrett.

MR GARLING:   It seems to be a central theme, your Honour, and certainly the early article of Professor Finn, albeit it dealing in the criminal context, would suggest that those claims ought be similarly restricted.  Your Honours, as a matter of principle, given that government officials are liable in negligence, there is no reason to extend.  But, may I add, your Honours, perhaps unnecessarily, there was no claim for negligence pleaded here.  Your Honours, may we put shortly our submissions on damages?  We rely on the way in which they are put in writing.  Shortly put, we submit that the Full Court erred in awarding damages in this way, namely, aggravated damages and exemplary damages but without what we would, I think, inarticulately describe as primary damages.

GAUDRON J:   Yes.  Again, the matter does not seem to have been approached on the basis that there was any.

MR GARLING:   No, and we would say, if one is dealing in tort, one needs to have actionable harm capable of being quantified.

GAUDRON J:   Well, I am not too sure about that.  I would have thought - well, it does not have to be quantified.  For example, you cannot quantify nervous shock, in tort, or defamation.

GLEESON CJ:   Is this one of those torts where they say damages are applied?

MR GARLING:   Yes, your Honour.

GLEESON CJ:   What exactly does that expression mean?  I know what juries often think it means.

MR GARLING:   It means, I think, your Honour, this, that as a matter of principle there is no reason to restrict the heads of damage which might flow from the tort, but that the award of compensation must be an award which, in the traditional terms, so far as is possible, places the plaintiff in the position they would have been in had the tort not occurred.

GAUDRON J:   Let it be assumed that there was real damage of the kind which you conceded, namely, the loss of a chance of retaining the benefit of the contract.  Let it be assumed that that is said to be worth $100.  That might be absurdly low but it would not be a generous estimate of the value of the chance of retaining the benefit of the contract, would it?

MR GARLING:   One could value it in that way, yes, your Honour.

GAUDRON J:   Had that amount been granted as primary damages, would you then have any difficulty about the course that was taken?

MR GARLING:   No.

GAUDRON J:   The difficulty seems to be that their Honours simply did not realise that there was damage, because they seem to have approached it on the basis of no loss of wages.

MR GARLING:   Well, your Honour, there is a difficult question - your Honour the Chief Justice asked me if damages were at large and I said yes, but that was really in the context of - I meant yes, but there is a question which was put at trial which is this:  if the breach of contract does not give rise to damage, other than nominal, because, for example, decisions of the kind your Honour Justice Hayne referred to yesterday of Addis v Gramophone, and like authorities say that damage for loss of reputation is not available in a case of that breach of contract, if the primary underlying legal harm is a breach of contract or a termination of the contract and damages are limited for that primary underlying cause of action, we submitted, and we continue to submit, that as a matter of principle the tortious damages for the adjunct tort should not rise any higher than that.

GAUDRON J:   But why?  Because, in a sense, you have to look to the nature of the interests being protected by the tort and in this - well, at least if you look at interference with contractual rights, which may at least be the damage that comes into the tort of misfeasance in public office, if you take the view that what is being protected are legal rights in themselves, why would you take the view that you do, that you have to look to, in effect, actual damage?

MR GARLING:   Well, your Honour, because if the primary right, which is the contractual right, is only capable of giving rise to a particular level or form of damage, one should not permit secondary rights to exceed that primary right.

GAUDRON J:   No, I think, see, again you are not taking into account the prospect that the contract would have continued on foot.  That is the damage, the loss of that prospect.

MR GARLING:   Well, if that be the damage, it clearly is not available for the breach of the contract cause of action, the primary cause of action, but it would be, we submit, an extraordinary result if the tortious cause of action resulted in an award significantly in excess of the actual financial loss.

GAUDRON J:   Well, not necessarily.  We are talking about contract where the measure of damages is quite different in tort.  Now, let it be assumed for the moment that I have a contract with the Army to supply widgets, but the Minister tells the Army to terminate it, and the Army buying officer says, “Well, had the Minister not intervened, we would have maintained this contract for 10 years”.  My measure of damages is very considerable, notwithstanding, that the next day I go out and sell widgets to the Indonesians.

MR GARLING:   We would submit, your Honour, in that example, that there is a real element of overcompensation.

GAUDRON J:   Not necessarily.  Because, what you are talking about is a capacity rather than what really - you talking about capacity?

MR GARLING:   Yes, your Honour, but ‑ ‑ ‑

GAUDRON J:   And you are talking about the value of the contract?

MR GARLING:   Yes, but the primary cause of action - I know your Honour does not find that term attractive - but, the contractual cause of action, which is the way the parties have regulated their commercial rights, ought, if it be breached, to give rise to a level of damages which is appropriate to compensate for that breach.

GAUDRON J:   But what we are talking about really, at least so far as concerns the action - well, in both causes of action - we are not simply talking about breach, we are talking about termination of a contract which might otherwise have gone on for a long time.

MR GARLING:   I accept that, your Honour.  May I invite your Honour to put to one side for a moment the tort of inducing a breach of contract because that is, I think, different from the basis your Honour is putting the discussion on, because the action there is that the Minister induced the breach, a breach occurred, the person is compensated for the breach, as opposed to the loss of the chance for continuing that ‑ ‑ ‑

GAUDRON J:   I am not too sure about that.

MR GARLING:   I think that is a slightly more complex situation your Honour is putting and can be elucidated in discussion if one looks at the tort of misfeasance for a moment.  The harm is identified as the loss of the chance to continue with the contract.  The value of that lost chance necessarily depends upon the way in which the contract is valued, necessarily.  So that, if the termination of the contract be in accordance with the terms of it, there is no reason to suppose that the value of the lost chance has any real value at all.

GAUDRON J:   Well, I think that is where we differ, because you are failing to take account of the chance of its remaining on foot for a longer period.

MR GARLING:   If your Honour please.  Of course, to prove that sort of harm you would need to call, in this case, the members of the old Bureau, if that be the appropriate group, or the new Bureau, depending on the view one takes of it, to say what the intention of the Bureau with respect to the contract would be.

GLEESON CJ:   The relevant chance, or the directly relevant chance, is the chance of persuading Mr Sanders to change his mind, is it not?

MR GARLING:   Well, if that were the directly relevant chance, your Honour, it may have very little value in this case.

GLEESON CJ:   I am looking at page 988, line 45.  That is what the Full Court regarded as the critical thing.  They said:

If Mr Snell had been given an opportunity to be heard, he may not have lost his employment.

Now, if you ask the question, “Heard by whom?”, the answer must be, “Heard by Mr Sanders”.

MR GARLING:   In that context, yes, your Honour.

GLEESON CJ:   Yes.  So they regarded as the act, constituting the misfeasance in public office, the failure of Mr Sanders to give Mr Snell a hearing before he directed the board.

MR GARLING:   Yes, your Honour.

GLEESON CJ:   It seems to have been argued on the assumption that he had the power to give the board a direction to termination the contract provided he went about it properly and there was a power in the Bureau to terminate the contract provided it went about it properly.  But it was his failure to give Mr Snell an opportunity to try and talk him out of the adverse view he had formed following the auditor’s report, that was the critical thing, was it not?

MR GARLING:   No, with respect, not, for this reason, that where the direction was given which permitted the contract to be terminated without cause, the failure to give a hearing would not result in any actionable harm.

GLEESON CJ:   But who was to give the hearing?

MR GARLING:   There is no question, your Honour, that the Full Court took the view it was Mr Sanders who had to give Mr Snell a hearing before the direction was issued.

GLEESON CJ:   So it was not a question of the opportunity of talking the Bureau out of it, it was a question of the opportunity of talking Mr Sanders out of it.

MR GARLING:   Yes, your Honour, that is so.

KIRBY J:   That would be on an assumption that Mr Sanders, as a public officer, would have his mind open and act in a proper and lawful manner; fairly, reasonably and lawfully.

MR GARLING:   The assessment of damage would have to proceed on that basis, yes, your Honour, certainly.  But that exercise was never put or undertaken by the trial judge or the Full Court, and the Full Court never attempted to quantify the damage flowing from that lost opportunity.

GLEESON CJ:   Let me put it this way  In so far as the Full Court were awarding aggravated damages, they were awarding aggravated compensatory damages.  What were they compensating him for?

MR GARLING:   Well, it seems to us from reading the Full Court’s decision, they were compensating him for the loss of reputation, loss or damage to his reputation, which arose from the conduct, we would submit, post the tort of issuing the press release and the conduct of the termination happening without Mr Snell working the two months off by attending at the Bureau.  It seems that that can best be seen, your Honour, from 989, line 33 or so, where their Honours, having set aside the trial judge’s findings on damages in the first paragraph, say:

His Honour then turned his attention to aggravated damages - or, as he described them - damages for “loss of reputation, including prospects of re-employment at a senior executive level”.  The pivotal point in a consideration of this topic is the conduct of Mr Sanders in issuing a press release immediately following Mr Snell’s dismissal.  In that release -

et cetera.  That seems, your Honour, to be the basis upon which the sum of $40,000, which their Honours come to at 994, line 30, was made.

KIRBY J:   In a defamation action you can bring evidence relating to the post-tort conduct to prove malice.

MR GARLING:   Yes, your Honour.

KIRBY J:   Why?

MR GARLING:   For example, the pleading in the case and the method of conducting of the trial.

KIRBY J:   That is right, exactly, right up to the moment the jury goes.

MR GARLING:   Is an easy example of that?

KIRBY J:   Why is not this an analogous way of approaching the facts?  That you can look to the way in which, after the tort, your client, as it were, compounded the harm that had been done by the way in which he then began to crow about his purity and the reasons for getting rid of the plaintiff.

MR GARLING:   We do not contend, your Honour, that aggravated damages are not available and aggravated damages fix, as your Honour has pointed out, on post-tortious conduct.  We do not dispute, as a matter of principle, in cases of this kind, that such damages may be available.  But we do submit that one does not get to aggravated damages unless there is some assessed damage because one cannot aggravate, notionally, unless there is some compensable damage in the first place.

KIRBY J:   Consistent with what I have said.  Normally - I mean, it may be that the original harm was limited and controlled but then, by reason of the post-tort conduct, what was a relatively limited and controlled harm that might have just been kept to a few people, was blown out of all proportion and made to do, as it was thought, very great harm to the plaintiff’s reputation.

MR GARLING:   We do not dispute that, your Honour, but one has to start ‑ the starting point is an identified, compensable sum of compensation in the limited circumstances your Honour has spoken about.

GLEESON CJ:    That is not the way it works in defamation.  The jury are not told that they, first of all, have to assess the unaggravated compensatory damages, and only when they do that can they assess aggravated.  Your complaint seems to be that the Full Court here took one step when it should have taken two.

MR GARLING:   Yes, because they could not identify, or articulate, or quantify any primary harm.

GLEESON CJ:   They could not quantify because damages were at large.  They did not have to quantify it.  They had to come in with a figure of compensatory damages which included aggravated compensatory damages.  They were not obliged to dissect, were they?

MR GARLING:   We would say that they should have dissected - it does not mean, your Honour, that damages are not at large, with respect.  To identify the heads of damage, does not ‑ ‑ ‑

GLEESON CJ:   But that is not the way you do it in a defamation case.  If you have a claim for aggravated damages, you do not dissect the unaggravated compensatory damages and the aggravated compensatory damages.

MR GARLING:   Well, your Honour, in some - your Honour’s knowledge of that field is vastly superior to mine but, as I would understand it, you can have, in fact, primary compensatory damages identified in a defamation action such as loss of income or financial loss identified, and then one would proceed to assess whether the defendant’s conduct had aggravated ‑ ‑ ‑

GLEESON CJ:   The plaintiff might get into the witness box and say, “I was fearfully hurt by the defamatory matter when it was published, and I lost my best client, and I had a breakdown and had to go to hospital and incurred some hospital expenses, and then they pleaded justification at the trial and that made me even more hurt, and the jury then say, here is $100,000”.

MR GARLING:   Well, your Honours, jury verdicts, of course, are always different from judge’s verdicts, because a judge, even though having to assess a global sum in an appropriate amount, nevertheless, has to expose their reasoning.  The Full Court, in exposing its reasoning, we say, has exposed a fundamental error which is that they do not identify the damage created by the tort.  They do not identify and quantify the damage which created the tort before proceeding to assess the damage which arises from conduct after the tort.

HAYNE J:   The point that is made against you is this man had a good paying job.  At the end of this process he did not have that good paying job; he took up part-time work.  That is the essence of the case against you, is it not?

MR GARLING:   In terms of the tort?

HAYNE J:   Yes.

MR GARLING:   Yes, your Honour, but our response to that is, in financial terms, he was paid the financial value of his contractual entitlements.

HAYNE J:   I understand that.

CALLINAN J:   Mr Garling, I had the idea that there was some discussion of the dissection of damages in Carson.  Did you check that?

MR GARLING:   Your Honour, I have not, regretfully, ventured into the field of defamation for the purpose of this case so I have not looked at Carson.

CALLINAN J:   It is simply on the point that the Chief Justice has raised.  I just have an idea that there may have been a reference to a dissection there.

MR GARLING:   I will have a look at that, your Honour.  Your Honours, the next point on damages is whether exemplary damages ought be available for a tort of this kind.  We can tell your Honours this, that we have not found a case in which exemplary damages has been awarded for a tort of this kind, but there are not many cases in which the reports record the extent of damages awarded in misfeasance cases.

KIRBY J:   But, in principle, it is the sort of tort that would attract exemplary damages?

MR GARLING:   No, we say, in principle, the very opposite, your Honour.

CALLINAN J:   It seems to me it would be a case par excellence, because all of the elements which need to be established seem to be the factors which are highly relevant to an award of exemplary damages.

KIRBY J:   That magic word “contumelious” hangs in the air.

CALLINAN J:   High-handed.

MR GARLING:   But that is of the essence of the tort.

HAYNE J:   Is it not one of the torts that was singled out in Rookes v Barnard?

MR GARLING:   Yes, it ‑ ‑ ‑

HAYNE J:   Survive in England for exemplaries.

MR GARLING:   Yes, your Honour, but, for example, in a case which is regarded as a leading decision on this tort in this country which is, albeit, a single judge decision of Farrington v Thompson (1959) VR 286 - - -

HAYNE J:   That is Mr Justice Smith’s - - -

MR GARLING:   Yes, your Honour, which has been referred to with approval consistently in later appellate decisions, both here and in the United Kingdom.  His Honour says, at 291 - again, I note, your Honours, without a reasoned discussion of it, at 291 at about point 5, he says:

As the plaintiff cannot recover exemplary damages.....unless he establishes his cause of action in trespass -

because there was a trespass cause of action in that case -

it will be convenient to look first at that cause of action -

and assess it.  He discusses the cause of action and his Honour, in considering the judgment and upholding it - the verdict of the jury - does so on the basis of exemplary damages is not available.  There has not been a case we have found where it has been awarded.  We simply put this proposition, that given that this is a tort where, as the joint judgment in Mengel makes clear, the tortfeasor is personally liable ordinarily for the consequences of the tort, then that personal liability and the fact of holding the tortfeasor personally liable in that way, is sufficient punishment and is sufficient deterrent effect and there is no need to add to that by permitting an award of exemplary damages, the purpose of which is punishment and deterrence.

GLEESON CJ:   What is an example of a case where exemplary damages might be awarded and the defendant is not personally liable?

MR GARLING:   XL Petroleum, your Honour, in this Court.

GLEESON CJ:   It has frequently been pointed out that compensatory damages operate as a deterrent but, as has been mentioned, even in the limited categories of case which, in England, are accepted as giving rise to the possibility of exemplary damages, there will also be an award or may also be an award of compensatory damages for which the defendant is personally liable.

MR GARLING:   Yes, your Honour, but this particular tort is, we would submit, unique by reason of the elements of it and the nature of the way it imposes liability.  Can I pose the other side of the argument for a moment to your Honour the Chief Justice?  If this is a tort which, of its very nature, would bespeak exemplary damages; it would be a tort in which the defendant was facing, not just in every case.  Exemplary damages would have to apply in every case.  There would not be a case of this tort which exemplary damages did not apply.

GLEESON CJ:   I could understand an argument based on discretion that said, in the present case the aggravated compensatory damages that were awarded were sufficient to fulfil the purposes of punishment and deterrence that are served by an award of exemplary damages.  That would just be a discretionary argument aimed at the facts and the circumstances of the particular case.  But your argument, as I understand it, is that exemplary damages are never available in a case of misfeasance of public office.

MR GARLING:   Yes, your Honour, we put it that highly.

KIRBY J:   Is there any authority directly on the point? 

MR GARLING:   No, your Honour.

KIRBY J:   There seems to be authority against it.

MR GARLING:   Well, the authority is not directly against it in the sense of an analysis of a case of misfeasance and in saying exemplary damages is available.  There are certainly remarks in Rookes v Barnard suggesting it is a case of a kind in which damages are available.

GLEESON CJ:   Well, can you say any more on it than you have in your written submissions?

MR GARLING:   No, your Honour, and, with respect to interest, we have put what we wish to put in our written submissions.  It is a very short and, we would submit, clear point.  On that point, your Honours, I did indicate yesterday that I would provide to the Court a copy of a decision of the New South Wales Court of Appeal entitled Commonwealth of Australia v Murray, the gladioli grower, which is found in (1988) Aust Torts Reports 80‑207 and the headnote is at page 68,041, which is the fourth page of the photocopied extract. The headnote No 6:

Exemplary damages were not compensatory and did not attract interest.

And the basis for that is to be found on the second-last page, which is page 68,053, in the right-hand column, in the paragraph commencing “The substantial grounds of the cross-appeal”.  That, your Honours, is the only decision we can find on the question.  It supports our contention which, we would submit, is supported, in any event, by the analysis of this Court in Haines v Bendall, for example, as to what interest is in terms of tortious damage.  Unless there is something more, they are the submissions for the appellant.

GLEESON CJ:   Thank you, Mr Garling.  Yes, Mr Cook.

MR COOK:   May it please the Court, I think that I should, immediately before I raise any of the matters which I think are appropriate in my notice of contention and then, of course, the application for special leave to cross‑appeal is before the Court, I would want to draw attention to a couple of matters that my learned friend has raised immediately this morning while it is still fresh in the mind of the Court and everybody before the Court.

Might I say, in answer to the request by his Honour Justice Hayne last night, that at pages 523 and 524 of volume 3 of the appeal books there was questions directed to the appellant in these proceedings by myself in relation to advice and taking advice.  The matter that your Honour Justice Hayne raised at page 517 was his appreciation of whether or not the direction that he gave was a legal direction.  Of course he was not himself entitled to give evidence as to whether or not it was illegal or otherwise, but he was asked what his belief was as to whether it was legal.  I had objected to the question being asked, and had been overruled by the trial judge, and he was able to then give evidence on the ruling of the trial judge that his belief was that the direction which had been given was a legal direction.  I then, of course, was aware, may the Court understand the proceedings, that in the third party proceedings, which, of course, are in volume 1 of the appeal books, the amended defence to the third party claim is clearly set out, as well as later in volume 1 of the appeal books is also the amended statement of a third party claim.

The statement of a third party claim had sought that Mr Wright, if I may just simply shorthand it, should be found to have been negligent in that he had failed to advise the Minister that various actions which he was taking, the revoking of the appointments of the board, the giving of directions, the appointments of the new members, and matters of that kind, should have advised the Minister that those actions could found some tortious liability in him. 

In the statement of defence to the third party action it was raised very clearly, indeed, at pages 11, 12 and 13 of volume 1, that no advice at all had been sought by the Minister from Mr Wright and that no advice had been given.  Of course, I was aware, with respect, in the question of whether there is something to be taken against the conduct of the proceedings of cross-examination on this particular point, that it was clearly to be argued, if indeed the third party was going to call Mr Wright or whoever is going to call Mr Wright, that he, as a solicitor, was maintaining clearly that no such advice was sought and no such advice was given.

What I did in my questioning, as I have already referred to at page 523, was endeavouring to ensure by that questioning that Mr Sanders understood about the question of advice and seeking advice at pages 523 and 524, that he acted, as it were, according to him, solely on the advice that he had received from Mr Wright, and to commit him to that situation that he did, in fact, adhere to the claim that he had been advised at all times entirely by Mr Wright.  Of course, the learned trial judge found on the evidence, either by refusing to accept Mr Sanders as a witness of truth and, of course, in the absence from any evidence from Mr Wright as to what advice was given and so forth, that he found that he had not received any advice and not sought any advice and his findings were that he had deliberately not sought that advice.  Now, of course, there was no appeal against the determination of the third party proceedings in favour of the administration in any way.

The situation too, if I might just advert to it at the moment, that in that context I also questioned him quite extensively at pages 526 and 527 as to his awareness of the responsibility that he had as a Minister to act at all times fairly and to give opportunities for persons about where they may be:

contest or dispute about particular matters to give those persons an opportunity to make representations too.

This was at page 527, line 25, in particular.  I went on to ask him:

Because that was an element of being fair, was it not?

And he eventually agreed that that was so.  He agreed that his responsibility at all times was to act fairly as a Minister and he had served, on a number of occasions, as a Minister in previous assemblies and I was entitled, with respect, to establish, on that questioning, that he understood his obligations put upon him to act fairly and that included the opportunity of giving persons the opportunity to be heard.

KIRBY J:   Now we have plunged straight into a great deal of detail now and I am not quite sure where this is fitting in.  Is this directed to the proposition that because Mr Sanders called for the letter, because, having regard to the seriousness of decision he may have presumed to have read it or said he read it - the contract, I mean - because of the terms of the contract and its provisions and because he was warned that he ought to get advice of the Crown Solicitor, because of the fact that he was warned that he ought to exhibit natural justice, that, from all of this there is to be inferred the fact that what he did he did either deliberately, contrary to the obligations of the contract or with reckless disregard to what the legal obligations were.  I just want to know the matters you are putting are relevant to in the causes of action before the Court.

MR COOK:   Yes, I appreciate that, if the Court pleases.  I was raising the matter again on another aspect too I was intending to raise, that because he was aware that there were disputes as to the reports accuracy and because he had been warned or told that it was appropriate to give the opportunity to be heard, then he should have, at all times, acted fairly.  I intended to indicate what the case of the plaintiff was and how it was presented, contrary to what has been put to this Court, that, at all times, what was complained of was his unfairness in a series of actions, in a whole course of conduct.  Notwithstanding the fact, of course, that the Full Court appeared to have made their decision on the misfeasance claim strictly on the question of the giving of the direction of 18 June, I will intend and claim that I can support to the Court clearly that it always was the case of the plaintiff that the whole series of actions that he took over this period of time, and even those after the actual dismissal had taken place and the issuing of press releases, where all actions which were unfair and contrary to natural justice.  I will be seeking to put that to the Court and I intended to move to that straight away, if I might, with respect, your Honour?

KIRBY J:   That being relevant to which of the causes of action on which the plaintiff sued?

MR COOK:   To both, with respect.  It will be claimed that the actions that he took in total, particularly as it relates to the revocation of the appointments and the appointments of the new members and the matters such as having Mr Brown sit on the Bureau.  All those matters were matters which were contrary to natural justice and they were therefore wrongful and they were wrongful interference.

KIRBY J:   I see.  You say, if the question is whether or not there was a wrongful interference in the contract, then the departure from the obligation of procedural fairness or natural justice are the factors that you say give this the element of wrongfulness that is required by the cause of action contrary to the opinion of the Full Court.

MR COOK:   Yes, because they are actions which, by themselves, are said to be void - we are trying to avoid the contest about void or voidable - but they are invalid actions, the decisions that have been made.  The decisions which were beyond power as well where the revocation, it will be claimed, of the appointments and the appointments of the new members.  There were various of those actions - which will be sought to be argued, were all able to be classed as wrongful actions which led to the interference with the contractual relationships and the prevention of performance.

KIRBY J:   Speaking for myself, in this rather complicated factual case, it would be helpful to me if we could, as it were, deal with the categories of your case in stages, dealing perhaps first with your response to the appeal and then with the cross-appeal and the notice of contention.  If the other members of the Court agree with that, that might be the most logical way ‑ ‑ ‑ 

MR COOK:   I was hoping, with respect, that I might raise the matters in the notice of contention really to indicate to the Court exactly how the case was presented at the trial, because it is important that I do, with respect.

KIRBY J:   Is your primary case that you should have succeeded, as the primary judge, the Chief Justice found, on the claim for wrongful interference with contractual relations?

MR COOK:   Yes.

KIRBY J:   That was the primary thrust of your case at trial and you say you were entitled to succeed on that.  You did succeed at trial and the Full Court erred in taking that away.

MR COOK:   Yes that is so, that is what I say is the basis of the cross‑appeal and so far as the notice of contention is, I contend that in allowing me to press points, both on what would have been the appeal, of course, which was against the findings of the trial judge in my favour, I sought to raise these actions as being wrongful actions and amounting to an interference with a contract and I was prevented by the Full Court from so relying upon them and also, in effect, from - - -

KIRBY J:   Their Honours seem to have thought that to allow you to rely on matters which had not been adequately or particularised and fought at trial, would lead to a procedural unfairness in that it would have deprived the defendant of the opportunity of including them in a claim for indemnity from the government.....the third party notice.

MR COOK:   It will be my contention, may it please the Court, that the matter was clearly raised in the third party claim and at all times had been raised and it was the subject of discussion and submissions made at the conclusion of the case on the question of the validity and so forth of the revocation and of the appointments.  It always had been - they had been live issues in the case, and ‑ ‑ ‑ 

KIRBY J:   And you so asserted before the Full Court when their Honours raised the question?

MR COOK:   Yes, I did so, with great respect.

KIRBY J:   That long list of references in your written submissions to the exchanges of particulars and matters of that kind, you say will bear out your contention? 

MR COOK:   I do say that.

KIRBY J:   You were not just concentrating on the steps immediately surrounding the termination of the contract, but you were dealing with the, as it were, background of official acts that led up to that and which were necessary for that to be effected?

MR COOK:   Yes, right from the time of the first letter of demand, right through, I would be respectfully submitting that what I have outlined in the notice of contention was to endeavour to draw the Court’s attention to these matters and that is why the written submissions, which unfortunately were somewhat copious so far as the plaintiff was concerned, in an endeavour to meet all the problems of the issues in the case, which were numerous, was included in the appeal book to show how these matters were raised at the trial.

CALLINAN J:   Mr Cook, I have trouble extracting that from paragraphs 19, 20, 21 and 22 of your pleading at pages 5 and 6.  Now it may be that I could find it, in particulars.  Can you tell me where the particulars are, please?

MR COOK:   Yes, the particulars were exhibited, with respect, but there was also ‑ ‑ ‑ 

CALLINAN J:   Are they in the appeal book, Mr Cook?

MR COOK:   Yes, they are in the appeal book.  There were particulars which were provided in volume 4, I think it is page 824, my learned friend has just pointed out to me.

GAUDRON J:   Page 825 are the particulars that we were referred to this morning.

MR COOK:   Yes, 820 is the request and 825 is the reply to that request.

CALLINAN J:   I think you were going to draw my attention to something in the pleading first though.  I have interrupted you.

MR COOK:   Yes.  What I wanted to do, if I might just complete what I was going to say and then I certainly will come back to this question, if I might, was the matter that was raised by my learned friend about Mr Snell’s response at the time of the interview, which had taken place, and your Honour had asked some questions about the expressions that seemed to have come from Mr Snell which indicated some degree of his gratitude, as it were, or acceptance.  The transcript, of course, which has been referred to already in evidence, of that conversation, is a particular point that I wish to refer the Court to, is at page 778 of volume 4, and that is the conclusion of the interview, and at line 11, or before that, I think at line 6, Mr Horton says:

Well I’m sure you will understand that if nothing else Lisle, we are going about this issue professionally, and we will apply that to this exercise too.

And Mr Snell said:

Well that’s your interpretation, I’m not going to be here to argue that.

Mr Horton said:

Correct.

Mr Snell said:

There will be another time of course.

Now, in the view of the cross-examination - and that was his response at that time, which seemed to indicate that he was revealing an intention to do something about what had happened or he would have his day, as it were, and I, at page 354 of appeal book volume 2, in re-examination of Mr Snell, raised these questions and I particularly refer your Honour, without necessarily having to go into detail, but just give your Honour the reference, that was at page - there is discussion about the evidence of duress.  Then I asked the expression about - sorry I just want to find the exact reference.  I did ask about the question of sufferance, in re-examination, at page 351, and there was discussion about that which proceeds over, and then I asked of him about the question about what he meant, “There will be another time of course.”  He explained that as being, at line 21:

I would seek legal advice at a later date on my dismissal.

Indicating what he was intending to say, by that.  He was then asked some questions and there was an objection about what was his:

endeavours throughout this particular interview so far as your own conduct and behaviour were concerned, Mr Snell?

And Mr Garling objected to that and then I raised with his Honour that:

he has been questioned as though in some way or other he is expressing his gratitude for what has happened is in some way inconsistent with his approach that he was being dealt with wrongly, your Honour, and I submit I am entitled to have his explanation of ‑ ‑ ‑ 

And his Honour said:

Yes. I will allow the question.

I said:

You were asked about your expressing your gratitude or saying “thank you” or matters of that kind at the end of this interview, and I ask you what were your endeavours throughout this interview so far as your own conduct and behaviour during the interview were concerned?

And he said:

Yes, Mr Cook, I am an executive.  I know the rules of executives.  I am a courteous man and I am courteous with people in this type of situation and I try to be under all circumstances.

I think it is quite clear that the issue was raised and endeavoured to be made clear that he was not, as it were, just expressing gratitude; he was, in fact, being courteous and endeavouring to have the matter dealt with, as one might expect, without there being any serious acrimony or reaction between the parties in that conversation.

May it please the Court, if I might, because I had thought that it might be appropriate, unless the Court would wish to hear otherwise, because in my making my submissions about the appeal generally and my entitlement to have the termination of the Full Court upheld on the question of the misfeasance proceedings, I was intending to raise, by way of the notice of contention, how these various matters had been raised and I did not want to go, with respect, because I have provided the Court with the lengthy list of the material to each and every one of these matters, but I was intending to respectfully draw the Court’s attention to the fact that the letter of demand which commenced the action, right from the very beginning of the proceedings between the parties - and that was exhibited immediately prior to the letters of request for particulars - raised the question of the purported revocation of the appointment of the members of the Tourist Bureau and that letter, which was put in, went in as exhibit AD.  That is at page 818 of volume 4 of the appeal books.

Repeating there in the middle of the page at lines 26 onwards the situation that he had:

taken certain actions and gave certain directions to the Tourist Bureau which was then under the chairmanship of Mr Ken Nobbs.

And then I said:

It appears, further, that you then purported to revoke the appointments of all of the members of the said Bureau because you thought that they were not willing to carry the said directions into effect promptly.  It appears, further, that you then purported to appoint some new members of the Tourist Bureau to whom you seem to have given certain directions.

My client instructs me that it is his belief that, as a result of your above actions and directions his employment as Executive Officer of the Tourist Bureau under a then recently renewed contract of employment was improperly and illegally terminated.....

My client claims that you took such actions and gave such directions as above wrongfully, illegally and without proper cause or justification.

And there was the Beaudesert claim.

He -

also -

claims that in taking such actions and giving such directions as above you abused and misused your powers, functions and duties as a public officer and that that abuse and misuse has also caused him the harm damage and loss referred to above.

GLEESON CJ:   Mr Cook, Mr Sanders I gather is, by occupation, a butcher?

MR COOK:   Well he had various occupations over the years.  He has owned property and managed property.

GLEESON CJ:   But that was his primary occupation, according to the judgment.

MR COOK:   Well that is what the Full Court referred to, may it please the Court.

GLEESON CJ:   Yes.  The essence of the claim for misfeasance of public office was, was it, that Mr Sanders knew that a failure to give Mr Snell a hearing on a question of whether he should direct the Bureau to bring Mr Snell’s employment to an end, was contrary to law?

MR COOK:   No, that was not the case.  It was put on a number of bases.  It was certainly put on the basis that if he did not have that precise knowledge, he certainly was recklessly indifferent to the opportunities to obtaining such advice and making the efforts to find out what his powers were and what he was required to do, which has been said, of course, to be an important ingredient in the tort. 

In my respectful submission, the trial judge, in his findings, when one looks at them and analyses them and examines them, seems to make it quite clear that that was the case in which he was finding against Mr Snell in these matters, that he had been quite reckless, as it were, in avoiding obtaining advice.  He did not obtain advice from Mr Wright as to any of the matters that he was involved in or any of the actions that he was taking.  He had been advised specifically by Mr Patrick Brown, the Chief Administrative Officer, when Mr Sanders told him that he had sacked the Bureau and he was going to sack Mr Snell, he said, “Well you had better consult the Crown Solicitor” or, “You had better speak to the Crown Solicitor about that.”

There were this type of situation which - and Mr Nobbs, of course, was the chairman of the Bureau and, with respect, your Honours, I think it has been overlooked that under section 10(c) of the Tourist Bureau Act, the Tourist Bureau and its members had an obligation to advise the Minister and to act as an advisory board to the Minister on matters of tourism and such forth and indeed, in exhibit X, which was one of the letters written by Mr Nobbs in response to communication from Mr Sanders, the Court will be taken to in due course, indicated quite clearly that he was endeavouring in his replies in those two letters of 17 June, one from him himself and one from the board, to act in what he saw was his responsibility to advise Mr Sanders of his actions and the influence, or adverse influence or otherwise, that his actions might have.

CALLINAN J:   Mr Cook, could I just take you back to a matter.  I am sorry to interrupt you but it is quite important in my view.  The Full Court has said that issues of illegality with respect to the revocation of appointments in the making of new appointments were not litigated.  That seems to be a view, rightly or wrongly, that the Full Court took.  I drew your attention to the pleadings which, it seemed to me, did not raise or certainly did not seem to me to raise, clearly, as an actionable matter or as an ingredient of the conduct complained about, the revocation and new appointment.  You then referred to the particulars.  Do you remember that?

MR COOK:   Yes.

CALLINAN J:   And I have now looked at the particulars and looking especially at page 826, line 45:

It is the main substance of the Plaintiff’s case that there was no just, proper or effective cause or reason for the Defendant to take the actions against him -

so that is the way in which you put the substance of your case in your particulars.  Then if you go over the page to 827, you say, again:

It is further claimed that the Defendant acted in bad faith in that he denied the Plaintiff natural justice and acted against him without just and proper cause.

Now, it seems to me that, from my point of view, this is a very important matter.  It seems to me to be a very strong case that the revocation and the appointments may not have been authorised, that they may have been illegal.  So I really need to be satisfied that this was an issue that was litigated and at the moment, tentatively, it seems to me, with respect, that the Full Court is right about this view, particularly when I look at the pleadings of the particulars.

MR COOK:   Well I quite appreciate that.  These particulars were given, of course, in answer, at the stage when instructions were being finalised and completed and so forth and the situation was that Mr Justice Wilcox, I think, who then was one of the judges, and still is, of the Supreme Court of Norfolk Island, gave certain directions that there be filed a document entitled “Facts Issues and Contentions” at the trial, and it is my respectful submission, and I will be taking the Court to that very shortly ‑ ‑ ‑ 

CALLINAN J:   All right, I am sorry ‑ ‑ ‑ 

MR COOK:   I did not really, with respect to your Honour and to members of the Bench, want to go - and I was trying to avoid going into great detail into some of these matters and getting bogged down in it, I was hoping that I might refer to these elements, as I say, in a general fashion, and say where I claim that they were raised.

CALLINAN J:   You go ahead, I am sorry.

MR COOK:   May I simply - and it might be an explanation to your Honour Justice Callinan, that the counsel who appeared on the appeal was not counsel who conducted the trial for the defendant and when, in the midst of my submissions, this was raised, I endeavoured to point out, he said the point, he believed, was not taken in the court below, and I endeavoured to say to the court that, yes, it was, there were a number of matters.  I did not have, with great respect, all of this documentation, or able at that stage.  I endeavoured, from the best of my recollection, to refer the court to various matters, believing that they would be able to, in due course - because a lot of these documents were actually filed in the court file, that the court would have access to those ‑ ‑ ‑ 

KIRBY J:   In a sense, supporting your proposition was the fact that so much evidence was given of the previous actions and the official actions, which would have been irrelevant if the only issue had been the circumstances of the termination of the contract.

MR COOK:   May it please the Court, there is a great deal dealt with by the Full Court in their judgment on the question of the unfairness, the deliberate omission to give Mr Snell the right to be heard, and that appears in the judgment, where the Full Court go right through all his actions over a period of days, dealing with them, and the effect that they had as unfair actions.

KIRBY J:   If they had been outside the pleading and outside the particulars, one would have expected trial counsel to have objected and said, “Well this just is not relevant to the cause of action or the particulars”, but, in fact, it sailed into evidence and you say that is the case that you were fighting at trial.

MR COOK:   Yes, I do say, with respect, that that was so and, with respect, if one goes ‑ ‑ ‑ 

GLEESON CJ:   May I just interrupt you to inquire, what would have been the significance of this?  There was no suggestion, was there, that Mr Snell had a cause of action for damages by reason of the wrongful termination of the appointment or the wrongful revocation of the appointment of the members of the Bureau?

MR COOK:   No, but it was something which was obviously aimed at him; proposed and aimed and targeted at him.

GLEESON CJ:   But, just a moment, it was accepted by both the trial judge and by the Court of Appeal that Mr Snell’s contract, which was not of course a contract with Mr Sanders, had been wrongfully terminated?

MR COOK:   Yes, your Honour.

GLEESON CJ:   Now, the allegation that the members of the board had been improperly appointed might have been an additional reason for concluding that the contract was wrongfully terminated, but how otherwise was that allegation relevant to a claim for damages by Mr Snell against Mr Sanders?  What would be the cause of action that Mr Snell had against Mr Sanders, based upon the wrongful revocation of the appointment of the previous members of the board and the wrongful appointment of new members of the board?

MR COOK:   Because I was endeavouring to show that if right from the start there was a wrongful revocation, there was a wrongful appointment and all those matters of that kind, leading up to the giving of the direction, then the direction was not a valid direction.  It could not have been given to ‑ ‑ ‑ 

GLEESON CJ:   They were just additional grounds for concluding that the contract had been wrongly terminated.

MR COOK:   They were going to the question of the power to give a direction.  The direction had to be given to a validly constituted Bureau; it could not be a valid exercise of power.

GLEESON CJ:   The invalidity of the direction was an additional reason for saying the contract had been wrongly terminated.  I understand that.

MR COOK:   Yes, I am sorry, your Honour, if I am misunderstanding you.

GLEESON CJ:   What additional significance does it have in relation to a claim for action for damages by Mr Snell against Mr Sanders on one of the causes of action identified in the letter of particulars?

MR COOK:   Well that was in the wrongful interference situation, but all those actions, of course, and what he had done, amounted to a wrongful interference, because it brought about ultimately the prevention of his performance of the contract that he had.

GLEESON CJ:   But if it was only an additional reason for saying that his contract was wrongfully terminated, it added nothing to the conclusion that was drawn in your favour by both the trial judge and the Full Court.

MR COOK:   I see what your Honour is saying to me and I appreciate what your Honour is saying.  I had understood, your Honour, that it was open to me to raise these matters as going to the validity of the ultimate direction which was given and the opportunity to use that in supporting arguments in respect of both causes of action and that is the whole basis on which I endeavour to raise it.

GLEESON CJ:   But the two causes of action that were dealt with below were wrongfully inducing a breach of contract.  Now, all the judges below agreed with you that there had been a breach of contract and you lost on that point in the Full Federal Court because they said there was only one communication about the termination of the contract between the Bureau and Mr Sanders and that was a direction to terminate the contract and it was not a direction to terminate it unlawfully and you will have to tell us in due course why that conclusion was wrong.

MR COOK:   Yes, I appreciate that, if the Court pleases.  What I think I was leading up to was the fact that the cause of action which had been, at all times, presented, your Honour, in respect of the contract was that there had been a wrongful interference in the contractual relationships.  That was the cause of action was prevented and that was what, indeed, the learned trial judge, at the very commencement of his judgment, made it quite clear that he believed that the two causes of action were - the first cause of action is intentional interference with a contractual relationship and the second is the tort of misfeasance and, indeed, it was presented and endeavoured to be presented to the court at all times as wrongful interference in the contractual relationship.  In other words, by terminating the employment, that prevented the performance of the contract of employment.  That was always the case, with respect, which was placed before the trial judge.

It was argued before the five justices, always put in that way, with respect.  I was faced with a situation, if it might be said, that the trial judge found and identified the cause of action as the intentional interference with the contractual relationship and then, of course, if one reads his judgment, he appears to pay considerable weight to the fact that the defendant intended to bring about the termination of the contract of employment at the earliest possible time, that everything he did was aimed and targeted towards that end and he achieved that end.  Therefore, he wrongfully interfered with the contract.

In our respectful submission, really when you read his judgment, that was really what the effect of his judgment was, that he was finding in my favour on the ground of wrongful interference because he intended to interfere.  He did, in fact, interfere with it.  He wanted it terminated at the earliest possible time.  He gave a direction to that effect and that was what occurred and his Honour said he must be taken to accept the consequences if that was what his intention was and that was the result.

GAUDRON J:   No, you have slipped into saying “intentional interference with contractual relations”, but the particulars to which Mr Garling took us today specified a cause of action as induced breach of contract.

MR COOK:   Well, it has always been, with great respect, your Honour, in the books on torts and the authorities have always referred to the generic expression “inducing a breach of contract” and included within that “wrongful interference with contractual relations”.  In fact, I think some of the textbooks tend to now say that it would be more appropriate probably to refer to it as a tort of wrongful interference with contractual relationships rather than the other way round and that, of course, came from as early as the cases of Quinn v Leathem and right through the whole development of the tort. 

The tort has developed, with great respect, considerably since the times of Quinn v Leathem to the latest developments in Merkur Islands Case in the House of Lords where they refer to the, not a breach of the contract any more, but prevention of performance and there has been a constant widening of the grounds.  That was one of the matters, of course, which I raised in the Full Court restricting it there to be necessity to prove that there was the intention to have a specific breach of the contract, or the contract to be breached in a specific way.  With respect, if I might to the Court simply ‑ ‑ ‑ 

HAYNE J:   I must say, Mr Cook, that the assertion that that is the standard form of description in the textbooks at least then puts Clerk & Lindsell out on a limb.  They treat the torts as entirely distinct.  Perhaps Lord Wedderburn, the relevant editor, was wrong.  No matter.

MR COOK:   Well, your Honour, I did not wish to be in the position that I was putting something which was inappropriate in consideration of the identity of the nature of the torts.  I had thought that the tort of wrongful interference with contractual relationships has been dealt with in similar terms in a similar fashion to inducing a breach of contract.  It is just simply that the necessity to establish a breach has disappeared into a different category of requirement in establishing the tort.

May I simply refer, if I can, to the document which was filed in compliance with the Court’s directions, and that was a document entitled Facts, Issues and Contentions.  That was filed at the request of one of the Judges of the court.  It appears at page 15, it commences at page 15 in volume 1 and is a fairly lengthy document.  It has endeavoured to set out all the questions that might be appropriate to be raised and the factual matters and the actual issues and contentions which would be raised in the proceedings. 

I would respectfully submit that in consideration of the material set out in the Facts, Issues and Contentions which were relied upon consistently throughout the proceedings, that there was material there and I do not wish, with respect, to take the Court’s time by going into the detail of it, but I claim that in those facts, issues and contentions is sufficient material to identify the nature of the proceedings which was being brought by the plaintiff.

When the defendant at page 40 of volume 1 put on his facts, issues and contentions the questions were raised in page 41 as to the revocation of the new appointments and the direction all being within power and being lawful.

CALLINAN J:   What volume was that, I am sorry?

MR COOK:   Volume 1 and this was at page 40 to over 41 and it was clearly that that was an issue which was in contention.  The third party claim repeats, and it is set out at page 43 ‑ ‑ ‑ 

HAYNE J:   Why do we need to be fussed at all by the third party claim, Mr Cook?

MR COOK:   Only because there was reference in the Full Court determination to not allowing me to rely on any of these matters, which seemed to close their attentions down to the last direction that was given rather than the earlier matters which I sought to raise, that there had been, by reason of the point not being raised clearly or litigated, there had been a deprivation to the defendant of the opportunity to raise the matter against the third party and seek indemnity.  I respectfully submit that an examination of the matters set out in pages 44 and 45 over to 46 clearly indicate that these matters were raised and ‑ ‑ ‑ 

HAYNE J:   I must say, Mr Cook, I would have thought your best point was the one you had not mentioned which is at page 35 where, in your statement of contentions, you say that:

It will be submitted.....that the Defendant wrongfully, both directly and indirectly, interfered with and caused a breach of his contractual relationship -

MR COOK:   Your Honour, I am sorry, I was not trying to avoid that.  I understood the Court ‑ ‑ ‑ 

HAYNE J:   I am trying to, perhaps, bring you to the point, Mr Cook.

MR COOK:   Thank you.  I appreciate very much your assistance, your Honour.  I am sorry that I overlooked doing that with particularity but it was raised and it was clearly, I respectfully submit, raised and I am grateful to your Honour pointing out that precision that appeared there. 

In the outline of opening address for the plaintiff, which was a document which the trial judge asked to be prepared and provided to him to, as it were, save time and to enable the matter to proceed expeditiously because of his commitments and so forth - that is at page 50 to page 65 - in that again, I respectfully submit that the matters which were argued and sought to be argued and the nature of the claim of the plaintiff clearly appears and it is indicated as being the wrongful termination of the contract and the prevention of the contract, interference with the contractual relationships.

The submissions of the defendant which commence at page 66 of volume 1, at pages 79 and 80 of volume 1, there are questions there raised in paragraph 39(b) and (c) and then on page 80 in paragraph 41 the questions there as to it being within power, that is the revocation and the appointments and then, with respect - and again I do not wish to in any way take the Court to the lengthy written submissions - I ask the Court in due course, with great respect and having in mind the time restraints and so forth that clearly must be upon everybody, the very commencement of the plaintiff’s final submission is - page 95, may it please the Court, volume 1 -

It is the Plaintiff’s case against the Defendant that he, as the Executive Member of the Legislative Assembly.....wrongly, and without justification, interfered with the Plaintiff’s contractual relations, as Executive Officer of the Tourist Bureau, and that he was guilty of misfeasance as a public officer -

He went on to say that both grounds had been made out.  I then, certainly at some length, made all the various points which enabled me to claim that all of the acts which had been committed were acts which had to be taken into account in both the causes of action that the plaintiff was claiming.  I respectfully submit that that appears, particularly at pages 172 over, and at page 176 line 15, and I just refer to this, if I might, and then I will pass to other matters, if the Court pleases:

The unrelenting pressures brought by the Defendant, firstly by his demands for the resignation of the Plaintiff as an immediate and urgent situation he desired to happen and his threats to compel the Bureau.....to dismiss the Plaintiff, secondly by his removal, in a completely arbitrary fashion, from office of the old Members of the Bureau who, for perfectly proper and acceptable reasons wished to fully discuss with him important matters before acceding to his demands, thirdly by his unlawful and expedient appointment of new Members of the Bureau to carry out a Direction to dismiss the Plaintiff in circumstances where he must have known that there would be immediate and unquestioning compliance with his Direction, all illustrate and support the Plaintiff’s contentions that in all the actions and conduct of the Defendant intentionally carried out to remove him from his office, without proper justification or cause, he was denied natural justice and essential procedural fairness.

GLEESON CJ:   Mr Cook, is it accepted that if he had gone about it the right way, Mr Sanders had the power to remove the members of the old Bureau?

MR COOK:   It is contended that he did not have the power to remove the old Bureau unless they were guilty of misconduct or were incapable under section 7(2) and that is referred to in my statement of contention, with respect.

GLEESON CJ:   Thank you.

MR COOK:   In fact, I referred to the fact that he did not use section 7(2).  He used the Interpretation Act sections and he had to act under section 7(2) of the Tourist Bureau Act. 

GLEESON CJ:   Now, he removed them, or purported to remove them, because they would not comply with the direction, is that right?

MR COOK:   No, what happened, with respect, I think that one has to look at it.  What happened was that they asked for the opportunity to have a meeting with him before they carried his instructions into effect.

GLEESON CJ:   Let me put another question then.  Is it accepted that, provided he went about it the right way, Mr Sanders had the power under the relevant legislation to direct the Bureau to lawfully terminate the employment of Mr Snell.

MR COOK:   I had raised it, with respect, your Honour, and it was certainly in the material which I have just adverted to the Court without going into the detail, the fact that it was beyond his power to issue such a direction because if you read the Tourist Bureau Act to ascertain what his powers were, there was an express provision in the Act, and which is singled out, as it were, the right of the Bureau to engage such persons as they considered fit and necessary for the purposes of the Bureau.  The power to give directions as to the conduct of affairs and the functions and powers of the Bureau would not extend to terminating the employment of a member of the Bureau.  That was a matter for the Bureau and basically, what had been provided for under the Act, and the fact that they were able to enter into contracts to carry into effect their powers under section 12, then it was not open to the Minister to effectively give such a direction.

I certainly raised that matter and it appears in the material which I have adverted to the Court so it was not conceded that there was that power and, in fact, I think in the submissions that were put on by the defendant at the completion of the case, he endeavoured to raise the question that he did:  there was a valid exercise of power in that respect, that it was valid for the Minister to be able to exercise such a wide power.  I had endeavoured to refer, in my submissions, to the traditional approach which was obtained, that Ministers of the Crown do not appoint or cannot appoint public servants or remove public servants.  That is something that has been taken from them because of the concerns of patronage and so forth.

I had raised those matters and I raised it as a convention, with respect, because I only want to point out one thing, that under the Norfolk Island Act originally and under the Parliamentary Privileges Act of Norfolk Island of 1979 and then a later Act of 1987, the members of the Legislative Assembly have the same rights, privileges and obligations as members of the House of Representatives and I had raised it as a convention that would apply to a Minister, that he should not interfere with the issue of directions in what is really a function of the Tourist Bureau. 

I had always, of course, to have to have the fall-back situation and argue from that, of course, that if it was said that he did have such power, then I was submitting that he had exceeded the power by the events which occurred and, particularly, by his failure to hear the plaintiff before he actually issued his direction to terminate the employment.  I do not wish to do otherwise.  The defendant had the opportunity to reply because he had gone first in supplying his submissions and he was given the opportunity to reply to my final written submissions and, at page 194 of volume 1, he refers again there to the question about the appointment of the four members and the casual vacancy situation which occurred.

With respect, your Honours, during the course of the trial I tendered before his Honour, and in the transcript of evidence this appears, the regulations which prescribe the numbers of members at any time who would be on the Bureau and under the Act itself, and the Court has been referred to this, it had to consist of the number of the bureaus consists of such numbers as were prescribed.  The relevant time, it has been accepted and was at the trial, that the relevant number was six.  I tendered the regulations and they were put into evidence to establish those particular points and they came into evidence for that reason.  With respect, it would be not appropriate to consider that that course having been taken, the documents having been received in evidence to establish that particular fact, and the discussion which took place at the time the documents were tendered, revealed that it was going to be raised that the appointments were not valid.

With respect, the revocation of the appointments of the members of the Bureau was expressed to take effect from 18 June and under ordinary principles of interpretation, and particularly under the provisions of section 22 of the Interpretation Ordinance which is before the Court of Norfolk Island, the time in any instrument or document on which something is to have effect or take effect does not include the day on which it is said to have effect from, as it were.  It always was my contention that the members of the old Bureau remained in office until midnight on 18 June.  So that when Mr Sanders appointed four new members and gave a direction to those new members and did not give it to the old members, it was an invalid exercise of his power because he could only exercise his power properly and effectively if it was given to a validly constituted Bureau.

I had raised all those matters, your Honours, with respect and I respectfully submit that it was quite incorrect or otherwise for it to have been contended these matters were not raised or not relied upon during the course of the trial in the way that the trial was presented.  With respect, the fact that his Honour the trial judge dealt with the matter in a particular way or did not consider it necessary to deal with some of these aspects of the matters does not prevent me from raising these matters.  As I understand this Court’s role, which was so clearly laid down by Mr Justice Isaacs in Federal Commissioner of Taxation v Clarke, dealing with the obligations of this Court on appeal and the way it might deal with matters, particularly of fact, which were before the trial judge, the obligation of this Court, of course, is to consider the evidence which was before the Court.

The findings of the trial judge which might have particular reliance on the demeanour of a witness or the way he presented himself and so forth, of course, had to be given appropriate weight; that he is in that position to see and form impressions that the Court of Appeal does not but, ultimately, the Court of Appeal and this Court have those obligations that his Honour so clearly laid down in that matter. Mr Justice Isaacs’ judgment on this particular matter is reported in 1927 - I am sorry, if the Court pleases, there has been some obscurity in the number of the Commonwealth Law Reports. It is(1927) 40 CLR 246 at 262 in the matter of the Federal Commissioner of Taxation v Clarke and Mr Justice Isaacs sets out over several pages the obligation of this Court to deal with the evidence as it was before the trial judge and, if necessary, make findings of fact or substitute inferences which might properly be drawn from those facts.

May it please the Court, so far as my notice of contention is concerned, I respectfully submit to the Court that the Court will accept that there was at all times raised, when one looks at totality of the proceedings and the way they were conducted and the opportunities which existed to the defendant in those proceedings and his indemnity claim against a third party, that really did not make it appropriate for the Full Court to rule that I should not be entitled to rely on those matters or any of those matters to the extent where they, themselves, seem to have restricted their considerations purely to the consideration of the giving of the direction on 18 June and what flowed from that.

It is of some note to note that the court itself determined that the giving of the notice to the board revoking their appointments was done contrary to the terms of natural justice or procedural fairness because they were not heard and they were entitled, of course, in their particular role they had as officers, to have that opportunity to be heard before they were summarily removed from their positions.

GAUDRON J:   Now, one of the difficulties about your position in this aspect of the case is that they were not the findings of the trial judge.

MR COOK:   I understand that, your Honour.  I appreciate that I am faced with that but then you see, your Honour, in the very commencement of his judgment, his Honour said there are:

two alleged causes of action in tort which are said to arise from the same circumstances.

GAUDRON J:   Yes, but the precise findings as they relate to the elements of the different causes of action are not there for the second.  I am just wondering, at best, cannot you contend that the matter should have been remitted to the trial judge if it was necessary to go into misfeasance in public office and that the best you could hope from this Court is that that would be the outcome.

MR COOK:   On that ‑ ‑ ‑ 

GAUDRON J:   On misfeasance in public office.

MR COOK:   Yes, well, with respect, your Honours, I would have submitted that it was open to the Full Court to deal with the cross‑appeal which had been brought to it because his Honour had not dealt with the matter.  There was clearly all the evidence which was there and in view of the principles ‑ ‑ ‑ 

GAUDRON J:   But his Honour had not made the findings?

MR COOK:   No, but it was open, with respect, I understood, on the principles, for instance, that I have just referred to in Clarke’s Case , to the Appeal Court to itself make findings on the facts.

GLEESON CJ:   Then, what finding did they make on the mental state with which Mr Sanders acted in relation to his knowledge as to the unlawfulness of his conduct?

MR COOK:   I think, with respect, if one answers that that they dealt with the matter on the basis, if I can understand it, of his recklessness in, as it were, not obtaining advice or not seeking to obtain some guidance in his situation.

GLEESON CJ:   But they did not find, did they, that his failure to obtain advice was because he did not want to know what the law was?

MR COOK:   That he did not want to know what the law was?  Well, they said that his admission was a deliberate admission.  With respect, there were findings.  At page 981 they dealt with the findings of the court and, commencing at line 19 on that page, the Full Court commenced to deal with the -what the findings of the Chief Justice were on the inducement proceedings.

GAUDRON J:   Yes, but the Chief Justice did not actually find, did he, that he was aware of his obligation to afford natural justice?

MR COOK:   In my respectful submission, would your Honour just excuse me for a moment.  I do not want to fail to answer you correctly.  I thought that, with respect, his Honour had found that there had been failure to afford natural justice.

GLEESON CJ:   Yes, he did find that there had been a failure to afford natural justice, but where is the finding of Chief Justice Beaumont that is referred to on line 20 on page 981?

MR COOK:   He found he was aware of his obligation - yes, would your Honour excuse me for a moment.  If I might, your Honour, he dealt with - referred to the matter of knowledge particularly arising out of Mengel’s Case - could your Honour just excuse me one moment.  I am sorry.  I do apologise.

GLEESON CJ:   I think that the relevant finding is at page 924 line 30.

MR COOK:   Yes.  That is right, your Honour.

GLEESON CJ:   What is the occupation of Mr King?

MR COOK:   Mr King was a person, I think at that stage, who was involved in the operation in the tourist industry and I think at that stage also, he was involved in the affairs of a fairly large management of a fairly large club on Norfolk Island.

GLEESON CJ:   Where do we find the evidence as to what Mr King said to Mr Sanders, which is there referred to?

MR COOK:   I was going to take the Court to that in due course. 

GLEESON CJ:   Just the page reference would do at this stage.

MR COOK:   I appreciate that, if the Court pleases.  There was evidence given by Mr King, not only in‑chief but also in cross‑examination about this aspect of the matter and what he actually said.  His evidence commenced at volume 3 of the appeal books at page 456.

HAYNE J:   Reference has been made to a passage in Mr King’s evidence at 458 lines 12 and following.  Is there any other additional passage to that at 458?

MR COOK:   Yes.  He was asked at page 459, in cross‑examination Mr Garling asked him some questions and brought his attention back to that evidence that he had given.  He said words to the effect:

please ensure that you observe the rules of natural justice, do you recall that?

Then he said:

you had been in office as a Member of the Assembly.....that’s correct.

He had not previously been that but he then gives his background and experience and he said at line 16 on page 460:

When you used the expression rules of natural justice to Mr Sanders as you say you used, were you using it in the context to any legal obligation?---Yes, I was using it in this context that I was seeking for him to ensure that the party to whom he was - it was possible some adverse outcome might eventuate, was given the opportunity to comment and the opportunity to be heard before that outcome.

He gave that answer and said that was what he intended to convey by his use of the expression “natural justice” and what he understood natural justice to be.

GLEESON CJ:   What we are interested in, particularly, of course, is what Mr Sanders understood by that?  Did the trial judge find that, as a result of that conversation, please observe the rules of natural justice, Mr Sanders was aware that the lawfulness of his conduct depended upon giving a hearing to Mr Snell.

MR COOK:   With respect, your Honour, I think that he was asked questions about whether he had said those words and Mr King had said those words to him and he denied that those words had been actually said to him and his Honour, the trial judge, did not accept his denial that those words had actually been said to him.  He did not believe Mr Sanders when he said that those words had not been said to him and been said at a particular time because those words were said, if I might just simply refer in Mr King’s evidence, those words were said at a time, as he said, before the termination of the Bureau and termination of Mr Snell’s employment.

GLEESON CJ:   Mr Cook, there is a rather significant gap between a finding that one lay person said to another lay person, “You ought to observe the rules of natural justice” and a conclusion that the person to whom those words were spoken knew that the lawfulness of his conduct depended upon giving a hearing to somebody.

MR COOK:   Yes, I did cross‑examine, as I said this morning - or bring the Court’s attention to my cross‑examination of Mr Sanders on the question of his appreciation of natural justice or what was required to be done if one was acting fairly and some action was going to be taken against somebody and his experience as the Minister for Immigration and matters of that kind, and I was asking him about his general appreciation and understanding of what was required to give people an opportunity to be heard if one was going to conduct oneself fairly.

Certainly, I did address the - and I referred this morning to that cross‑examination of the defendant on this particular matter which was important, that is, to establish what he appreciated to be his obligations as a Minister in dealing with problems or matters of this kind.  I respectfully submit to the Court that there was - particularly, I refer the Court to page 526 and page 527 - and I particularly referred to him at that opportunity was that giving a hearing was a necessary element of being fair and that he appreciated as a Minister what his duties were.  It is difficult to see where I could have, with respect, gone further.

GLEESON CJ:   It may be that if the trial judge had dealt with this issue of misfeasance in public office he would have made such a finding.  He may or may not have made such a finding, but there does not appear to have been a finding by him that Mr Sanders knew that his conduct was unlawful.

MR COOK:   I am, of course, in that situation that I can only say that the trial judge, not having dealt with the application for misfeasance, I can only say that such findings as he did make in respect of the other cause of action rising out of the same set of circumstances may well be taken to be some material upon which the Full Court could deal with this matter.  My learned friend, I think, has referred to a number of findings of the trial judge.  Of course, I suppose, strictly speaking, none of them seem to have been apposite or able to be used on the misfeasance action if, indeed, that be the case that one cannot, as it were, use his findings of fact or particular findings about particular situations or knowledge of a person at a particular time when both causes of action arise ‑ ‑ ‑ 

KIRBY J:   Mr Cook, you understand the problem from an appellate court’s point of view is that they do not see the witness.  They do not estimate for themselves his credibility and therefore, it is very hard for an appeal court, which has not that advantage, to reach a conclusion that a particular person knew something, knew that it was unlawful.  That is quite a serious finding to make.  I must say, I think what Justice Gaudron put to you earlier was the right point that, in that circumstance, if, contrary to the primary judge’s belief, it was necessary to reach conclusions on the misfeasance in public office, then the proper conclusion was not for the Court of Appeal, the Full Court to usurp the role of the primary judge on making findings of whether or not the person knew what he was doing was unlawful, but to send it back to Justice Beaumont and say, “Contrary to your belief, you had to reach conclusions on that tort.  You did not.  You have got to do it.  We cannot do it for you.”  That, logically, is the correct approach, surely.

MR COOK:   Yes, I appreciate what your Honour has said.  I was, of course, endeavouring to resist as far as was proper for me to do so that possible outcome or consequence, having in mind the obvious difficulties in time.

KIRBY J:   Well, of course, your primary argument is that Justice Beaumont got it right, that he was correct in terms of the action of wrongful interference of contract or wrongfully occasioning a breach of contract and that, therefore, it does not have to go back.  But if that submission, that primary submission of yours on your notice of contention, fails, then the logic of it seems to be, as Justice Gaudron pointed out, that it really was not for the Full Court.  I have never heard of a Full Court making a finding of fraud or a finding that a person knew that what they were doing was unlawful because of the great disadvantages that an appellate court has in that sort of decision making.  That really does depend very much on the estimate of the particular witness.

MR COOK:   I quite appreciate that, with respect, your Honour, exactly what your Honour has said to me, and I understand those difficulties, of course, were dealt with by Mr Justice Isaacs in the authority which I have referred to the Court and the manner in which the Appeal Court can look at this particular situation.  I realise the difficulties which have been pointed out by both Justice Gaudron and yourself, your Honour, to the situation that I may well face in respect of that misfeasance.  I can only press, as I have, and I will do no more than take the Court’s time in that sense, that the situation is that it was open to the court to make those determinations of fact on the evidence which was actually before it and draw inferences from that evidence.

KIRBY J:   Well, the thought of sending these parties back to get further litigation is a horrible prospect but we always have to keep our eye on consequences of what happens in this case for other cases, and on the instruction that it is proper to give to a Full Court as to the limited role that a Full Court has in substituting findings on such matters for the findings that the trial judge refrained from making.

MR COOK:   I fully understand what your Honour is saying and totally understand what has been put to me and the possible consequences of the outcome of that situation if I am not able to persuade the Court that it was open to the Full Court to make that finding.  So I do not wish to press the matter any further.  I appreciate totally what has fallen from your Honour and the consequences on it.  I do not think that I can take the matter any further if that is a factor, a proper outcome, with respect, and I accept entirely of course what the Court has said.  When I said “proper”, I meant an outcome which has to occur in appropriate application of principle to the findings of the Full Court on this particular matter, and the way they are dealt.  Well then, it may have to be the consequence that that may have to be accepted as a necessary way of dealing with that matter.  I have, however, endeavoured to point out to the Court that I am entitled to rely on the determination of the court and it did quite substantially find that all the elements which were necessary to be found of the misfeasance in public office were established.  Might I , and just before ‑ ‑ ‑

GLEESON CJ:   May I interrupt you to ask a question; just a small question of fact.  You wrote a letter on behalf of Mr Sanders at some stage in the course of this ‑ ‑ ‑

KIRBY J:   Mr Snell.

MR COOK:   To Mr Snell.

GLEESON CJ:   To Mr Snell, at some stage in the course of this confrontation.  What I wanted to ask you was whether Mr Sanders knew that you were advising Mr Snell at the time he gave this direction.

MR COOK:   No.  I was not advising him at all, with respect.

GLEESON CJ:   Did your letter precede the direction?

MR COOK:   No, your Honour, no.  My letter was dated, your Honour - it was well after all this had happened and I had received my directions and endeavoured to ‑ ‑ ‑

GLEESON CJ:   I see, so you first came into the matter only after Mr Snell had been purportedly dismissed?

MR COOK:   Yes, your Honour.

GLEESON CJ:   That is what I wanted to clear up.

MR COOK:   I am sorry, your Honour.  That letter was, I think, in March of the following year.

GLEESON CJ:   That is what I wanted to clear up.  Thank you.

MR COOK:   Yes, that is quite so, your Honour.  I was not consulted in any way whatsoever, your Honour, about this matter until well and truly after it had all finished and I was asked to give legal advice and that took, obviously, some time because of researches and the necessity to leave the island where there is a complete lack of facilities to carry out adequate and proper research.

GLEESON CJ:   You will be on the internet any day now, Mr Cook.

MR COOK:   Hopefully, your Honour.  Your Honour, in this Court - I think this is only the third case this century to come before the High Court and perhaps that is a good thing because of the complexities of finding the information that is necessary and the research which is clearly necessary to assist this Court.

Well, may it please the Court, I respectfully submit that I should be granted - I pass from the - I am sorry, would the Court just allow me to say one thing finally on this question.  It rose from something falling from the Chief Justice last night about the determination of the Full Court about the malicious nature of the acts of which they said was one of the ingredients required to be established and they spoke of the warning, as it were, that had been given.  I felt it was appropriate to point out to the Court that in this particular matter, the warning and so forth, that that clearly relates to the letter which was received from Mr Knox and the letters of the Bureau subsequently following it.  The reference that the Chief Justice dealt with last night was at page 987:

The act was done “maliciously”.....was warned of the obligation incumbent upon him.

Now, in respect of this matter, I want to point this out, and this may be a matter, of course, for the Court’s consideration; that at page 986, line 12:

Having been warned of his obligation to give natural justice to Mr Snell, and knowing that the correctness of the report on which he was relying was challenged by Mr Nobbs, Mr Sanders gave to the Bureau a statutory direction to take steps that same day to terminate Mr Snell’s employment.

Now, when one looks at that in its time frame and understands the course of events which we have inferred about because the Court, I am sure, would appreciate immediately that that statement there at line 12 to approximately line 21 is virtually the same repeated, as it were, at line 31 to line 37 on page 987.

GLEESON CJ:   Well, could I direct your attention to line 40 where it said:

This is a case of a public officer recklessly disregarding both a known constraint on his power.

That is based entirely upon the evidence of the conversation between Mr King and Mr Sanders, is it?

MR COOK:   No, your Honour.  No, that is the very point I am going to raise with your Honours.  That is not the case at all.  May I take you immediately to the letters written by Mr Nobbs.

GLEESON CJ:   Yes.

MR COOK:   They are in volume 4, and also the subsequent one written on behalf of the Bureau.  You see, your Honours, present with Mr Nobbs was exhibited - in particular, I wish to refer to page 803.  That is part of exhibit T.  I think your Honours will see from this that is certainly more to this than simply Mr King’s warning, by any means.  And I did refer to this morning, and I asked the Court to accept the background that Mr Nobbs, as was quite clear in exhibit X, in the last sentence of exhibit X, which was some further correspondence appearing at page 809 of volume 4, that he was acting in an advisory capacity under section 10(c) of the Norfolk Island Act. 

Now, in this letter at page 803, he recapitulates the discussions that had taken place between himself and Mr Sanders and there were, of course, quite a lot of the evidence in the material which emerge in Mr Nobbs’ evidence which the trial judge accepted and which was not challenged in cross-examination of Mr Nobbs or in evidence for Mr Sanders about these matters.

He refers to the fact that if he did not get the resignation of Mr Sanders immediately he was, as it were, or at once - and the conversation would clearly indicate that “You are to get his resignation immediately” - his immediate or resignation.  He was shown a typewritten draft of the direction and then he says, at line 35 - he refers to the harm which would ensue if he was dealt with by a rapid departure, as it were, from his employment.  He then refers to the report and to the fact that it is clearly - makes false allegations, false statements, and is defamatory and there are numerous facts.  He refers to the need to get competent legal advice before it is published.  And he says that he was going to set out matters that should be considered.  He said:

but I will try to do so.  I strongly urge you to wait to see it before taking any precipitate action, because I believe it will include information which would be essential to you in forming a balanced view of the situation.

I hope you will not make any immediate decision to issue a formal direction to the Board to terminate the Executive Officer’s contract of employment.  Amongst other things it would seem contrary to natural justice to do such a thing without giving the Executive Officer an opportunity to hear what he is accused of, and to give his side of the story.

Now, it was clear that here was the senior officer, as it were, the Chairman of the Bureau, exercising his powers, advising him that he should hear him.  In my respectful submission, that was powerful material for his consideration as to what his obligations were because, in fact, the next letter which was sent on that day after the meeting was held of the Bureau, and this was when the direction had actually issued out that the things would be done by 4 o’clock. 

The next letter was exhibit U and that is at page 805.  I respectfully submit the Court will understand that this is, in effect, the considered opinion of five persons who have been running the Tourist Bureau and who would expect that their judgment or their views about matters would be considered.  They were not just persons who were, as it were, just dropping by and having a conversation.  They were dealing specifically with the direction under section 15(1).  Now, in this letter it refers to the giving of the direction.  One of the persons, of course, Mr Richards, who was absent from the board, he apparently was also given a notice of revocation of his appointment, but even though he was not present during the discussions.  Then it says:

The Board unanimously endorses the views expressed in my letter to you abovementioned.

Now, here was a matter where, not only Mr Nobbs, of course, but the other four members of the Bureau were endorsing to Mr Sanders the fact that he should give the hearing, that it would be a denial of natural justice if he did not do it.  He says:

In view of the seriousness of the allegations.....it is the view of the Board that, before the Board carries out your direction, a meeting of Board.....should be convened by you, such a meeting to include all your Assembly colleagues, so that the matter can be fully and properly discussed in context.

So it was not a question of him declining to act.  They asked for a meeting before the board carried out the direction and they were asking for that to be done and said, “We want to have a hearing.  Get the executive officer and yourself and your colleagues and let there be a hearing about this, let it come out into the open, let it be discussed.”  And this was what they were asking.  They say”If you do not do that, we have no alternative but to resign.”  Now, it is a very strong warning, with respect, to say, “If you do not allow a hearing to take place in which his side of the case might be heard, or he might be heard, we will have to resign.”  And then it goes on to say; this is the last sentence:

We do not believe that the action required in your direction has been properly considered, and if carried out may have unwarranted and harmful effects.

Now here, with great respect, was a situation in which five members of the Tourist Bureau had unanimously endorsed the views of the earlier letter of Mr Nobbs. 

Now, as it were, the reckless attitude or whatever you might describe of Mr Sanders about this, the evidence which was given at the trial and is in the appeal book - and I will refer the Court to it if necessary - is that when Mr Nobbs sent him the first letter, Mr Sanders said - and he had received it, and Mr Nobbs said “Have you received my letter?”, and he said “It is useless.  It is too late.”  In other words, whatever he was telling him about what his obligations were or what he should do, Mr Sanders was just “Oh, that is useless.  There is no point in what you are telling me about.  I am not going to pay any heed to it.”, and he was completely reckless and inadvertent to what he was being told was a wrong thing for him to do, to issue a direction.

True it is, with respect, your Honours, that this direction issued on 17 June was not the direction, despite what my learned friend said, and I am sure he said it entirely inadvertently in error, this was not a direction that the board eventually acted on.  This direction, as it were, went by the board, if I could use that expression.  What happened was there was a new one on the 18th, there was second direction, and the court was not taken to that, but it was in the same terms.  It had the same deadlines.  That second direction which was exhibited in the proceedings was a direction that they were - the new Bureau was to meet and they were, by 10 o’clock that morning, to carry out the direction. 

So this was not the direction that was ultimately proceeded on by the Tourist Bureau but it was in precisely the same terms, with respect.  The direction that was proceeded on was exhibit 6 at page 864.  I think the Court was taken to the exhibit that was said to be the direction given on 17 June which was at page 801, as I recall off the top of my head.  That was the direction that was given.  That was exhibit S at page 801.  If one looks at it, it is precisely in the same terms.  So what the Bureau did, through Mr Nobbs, was warn Mr Snell quite clearly that, “You must hear him”.  I am sorry, not “must”, “It would seem appropriate”.

GAUDRON J:   Did they not say, “It may involve”; “It would seem to involve”, or “would ‑ ‑ ‑”

MR COOK:   “It would seem appropriate” or “It would seem” - I suppose there are ways of stating things, with respect, your Honour.  I am sorry, I withdraw the word I used you “must” do that.  Quite clearly, he did not say that.

GAUDRON J:   “It would seem contrary”.

MR COOK:   “It would seem proper”, or ‑ ‑ ‑

HAYNE J:   “It would seem contrary to natural justice.”

MR COOK:   “It would seem contrary to natural justice.”  So there was a statement that was drawing his attention to a requirement before he issued the direction or before he proceeded on the direction, before he went any further with the direction .

GLEESON CJ:   It is one thing for people to be saying, and saying very strongly, and perhaps very properly, “This is not fair”.  It is another thing for people to be saying, “You have no power to do this.”

MR COOK:   I understand what your Honour is saying to me.  The board said, “We want to have a meeting with the executive officer there and have the matter discussed otherwise we have no alternative”.  The reaction, of course, is the question of whether, having received the warning, as it were, as the Full Court of the Federal Court seemed to say, that having received the warning, Mr Sanders deliberately did nothing, as it were, about it or deliberately chose not to ‑ ‑ ‑

GLEESON CJ:   Well, they used the expression “a known constraint on his power”, and they repeat that word “known” soon afterwards.

MR COOK:   Yes.

GLEESON CJ:   Obviously it is a reference to passages in Mengel.

MR COOK:   Yes, and the reference, with respect, as I understand it to the fact that he had had drawn to his attention what was a method of procedure; what was to be done before he went any further; what was advisable; what should be done.  It was made known to him.  He was made aware of it.  Once he had become aware of it, he could not say that he did not know about it, with respect, your Honour.

KIRBY J:   Is there any place in this area of discourse for the principle that a person is deemed to know the law?

MR COOK:   One could say one ‑ ‑ ‑

KIRBY J:   Because the factum upon which the law was to operate was brought to notice, that is to say, the invalidity by reason of the breach of the rules of procedural fairness in a public officeholder. 

MR COOK:   Yes, there certainly is a law on ‑ ‑ ‑

KIRBY J:     So that was brought to his notice.  The devil himself does not know the mind of man, therefore you have to, as it were, infer the mind, unless Mr Sanders ever admits something, and he simply denied that these conversations - he could not deny the letter but he denied conversations.

MR COOK:   As I understand the principles that relate to ministerial responsibility or making decisions, and having the responsibility for making those decisions, it is assumed that a Minister who is going to exercise his powers, and particularly exercise his powers in such an important matter, would have made himself familiar with all the matters which related to that exercise of the power before he exercised it, and there is an assumption which has been spoken of in the cases about that, with respec,t your Honour, that exercising ministerial power in this way has its responsibilities and it can be assumed that he has made himself aware of his powers and obligations.

So it is a bit different to, as it were, anybody knowing the law.  You are talking about a particular person exercising a very important function, a Minister giving a direction to a government authority, and either that he has obtained advice beforehand, it is assumed, or otherwise, and if he does not do that, I mean, it is assumed that he knows what his position is and if he acts in the face of advice he is assumed to have received, or at least sought.  You see, Ministers of the Crown, with respect, your Honours, cannot, as it were, fire off like loose cannons.  They have to act within constraints and this Court - and as I refer to in my written submissions, Lord Justice Denning, particularly in the Laker’s Case, referred to the Court’s obligations and the obligations to deal with the actions of Ministers, and how important it is for the court to ensure that there is no excess of power or excessive use against an individual subject, and I refer to that in my written submissions.

GLEESON CJ:   Is it your submission that the Full Court of the Federal Court inferred, and rightly inferred, that Mr Sanders went ahead and gave what he knew was an unlawful direction?

MR COOK:   Yes, he must be assumed to have known in the absence of evidence to the contrary that he did not known whether it was lawful or not lawful, or on proper evidence being presented to the court.

HAYNE J:   In the face of his sworn denial.

MR COOK:   On the basis - - -?

HAYNE J:   In the face of his sworn denial.

MR COOK:   As to whether it was lawful or not?

HAYNE J:   Yes.

MR COOK:   Well, with respect, that was a matter, of course, for the - I suppose it was not a matter really for the Court of Appeal but whether he thought it was lawful to do what he was doing, the actual fact is, with respect, that he had warnings about what he was required to do and his absence of - if he thought it was lawful not to give a hearing then, with respect, that either arises because of advice he received - and he cannot rely, as he claimed, if that be the case, of advice he had received from Mr Wright, and if that is so, he could not rely on the fact that that advice was given and he believed to be lawful, because that was bad advice.  And you cannot rely on, as it were, say if you had been advised and simply say, “Well, I got advice about it, and if that advice was bad well I am still absolved from responsibility for that”, because if that was bad advice, well he is still liable.  He must accept the wrongfulness of that advice.

GAUDRON J:   No.  Well, that may be so but not in the context of misfeasance in public office where the critical consideration, absent actuating malice, if you like, is knowledge, wilful blindness or reckless indifference to the legality of what you are about to do, the lawfulness of the conduct.

MR COOK:   Yes, or of the power, the exercise the power.  But I would respectfully submit, as I have in my written submissions, that he was recklessly indifferent, of course, or deliberately inadvertent.  The court seems to say that his admission, to give him a hearing, was a deliberate action on his part and they refer to the ‑ ‑ ‑

GAUDRON J:   Was there some evidence that the man at the administration told him to check with the Crown Solicitor?

MR COOK:   Yes, Mr Brown said that he had spoken - Mr Patrick Brown, who gave evidence, which his Honour the trial judge accepted, that he had a conversation with Mr Sanders on the 18th, and which Mr Sanders, in effect, said that he had sacked the Bureau and he was going to sack Mr Snell, give a direction for the new Bureau to sack Mr Snell.  Mr Brown said, “You should consult the Crown Solicitor about this matter.”

KIRBY J:   This is all after the event though?

GAUDRON J:   No.

MR COOK:   No, that was before the event.  That was on the 18th, with respect.  That was before the direction was carried into effect before anything was done, as clearly the finding of the trial judge said that there was that warning given.  I have adverted to this in my written submissions to his reckless inadvertence or his deliberate blindness to seeking appropriate advice, and in the light of those opportunities which were available to him to obtain advice.  You see, the learned trial judge found that he did not obtain any advice at any stage from Mr Wright and nor did he seek, nor did Mr Wright give him any advice about any of these matters.  So if that is the finding of the trial judge upon the evidence and his assessment of the witness and all those matters - - -

KIRBY J:   Well your case has to be as you answered the Chief Justice, that on this question, although there was no specific finding by the primary judge, it was open to the Full Court to find, on the facts, on the objective facts, of the warning by the chairman of the Tourist Bureau and the warning of Mr Patrick Brown that he was on notice that he should accord natural justice, that he was on notice that he should get the legal advice of the Crown Solicitor, and that he nonetheless barged on and did what he wanted to do anyway and that that is enough to have found a decision by the Full Federal Court not that perhaps had a subjective intention to do something that was unlawful, but that he was recklessly indifferent as to whether it was lawful or not.

MR COOK:   Yes, I think, with respect, that will reveal itself in my written submissions and if I adopt what your Honour has said substantially ‑ ‑ ‑

KIRBY J:   It is either good or it is not and the alternative to that, I suppose, is your second submission that in the event that that was not open to the Full Federal Court, that their proper course was not to make the finding but to send the matter back to the primary judge to make a finding which he had said he did not have to make but which, in law, he did in the events that have occurred.

MR COOK:   As a necessary and sad consequence of that, I accept what your Honour has said, as being the situation that seems inescapable if that is not acceptable what I have put to the Court in respect of these matters of the knowledge and the recklessness, and so forth. Because if, indeed, in all his actions that he was taking in what he was doing, he was not seeking advice from Mr Wright.  He was not seeking advice from anybody.  There was evidence that Mr Wright was available to advise him.  There was evidence that Mr Foulds, the Crown Solicitor, was available to advise him and, with respect, his Honour the learned trial judge found that he deliberately did not seek advice.  It was a deliberate action on his part.  It was not a question that, well, he just did not get around to doing it, or thought that everything was all right.  He chose not to get advice and to proceed in the absence of proper advice which is obviously, with respect, something, as I have said, where a Minister is assumed, of course, to have made himself aware of the extent of his powers before he exercises, in a case such as this, what might be described as an extraordinary Draconian power and one that so clearly affects the individual as different from a group of people or an element of the community.

With respect, I do not think I can take the matter any further in regard to those matters that I have raised but I do ask the Court to consider them.  They have been raised in my grounds that have been brought forward in the argument on the appeal and that is contained in my written submissions and I am sure, with respect, and understand the Court, in due course, would give consideration to those particular matters and me having the opportunity to expound upon them as I have here today. 

I would respectfully submit to the Court that in my application for special leave to cross‑appeal, that the Court would consider it appropriate, because of the significant matters that are to be raised in the elements of that tort, in consideration of that tort, and the time which has passed since elements of that tort were considered in earlier cases in this Court, that it would be appropriate to grant the special leave to appeal.  I had, of course, prepared and filed in the Court my application for special leave to appeal.  It contains the various questions which I have sought to ‑ ‑ ‑

GLEESON CJ:   You have put and are putting your arguments in support of this application and we will deal with this application when we ultimately come to decide the entire matter.

MR COOK:   Very well.  May it please the Court, I appreciate that.  I understand.  I felt that it was my obligation to ask for special leave to appeal, and I will proceed to deal with the grounds of my cross‑appeal.

GLEESON CJ:   Thank you.

MR COOK:   I ask the Court to have regard, if I might, because I did so in my written submissions, to matters of fact and questions of fact which are set out in the application for special leave which I did not reproduce necessarily in the document which was - being my summary of argument in the present proceedings.

I have made it the essence of my submissions, as I have endeavoured here by raising the notice of contention this morning and the matters dealing with that, that this course of action for wrongful interference with contractual relationships was at all times before the court.  If, indeed, with respect, there was some degree of imprecision in the actual indication of the nature of the tort, what clearly emerged and rapidly emerged at the time and no prejudice to the defendant in any way at all was what really were the basis of the claims that was being made on the cross-appeal and the fact that the actions which were taken were wrongful actions, were taken by the defendant, and they had the ultimate end of terminating the employment of the respondent or the cross-appellant and that he lost the opportunities to enjoy the contract which he had and to continue in that contract. 

Indeed, in support of - in my notice of facts, issues and contentions, I refer particularly to the elements of fact that the cross-appellant had every expectation of being able to continue in that employment.  Her Honour Justice Gaudron had referred to this.  I particularly wanted to, in that regard, refer the Court to the evidence which was before the Court.  There were two matters in particular to refer to.  The first were minutes of the meeting of 3 March 1992 at which the new contract of employment was discussed.  This was at page 735 of volume 4 of the appeal book. 

If the Court would bear with me.  It is not lengthy.  If I may refer to line 28 on page 735:

Appoint of Executive Officer - At present this contract runs for two years.  The conclusion of contract coincides with changeover of Board and Legislative Assembly.  Minister explained that there could not be a worse scenario than everyone changing at once.

A change is required to remove time frame from Executive Officer’s contract.

Lisle Snell asked the Board if they wished him to leave the meeting.  It was agreed that all were happy for him to remain.

Now, I will point out the significance of that shortly because of what was said particularly by the Minister, who was then the Minister for Tourism, who was present and who made some particular observation which I would respectfully submit would have quite some significance in this particular case.  Then:

Robin Graham explained that E.O. is not appointed by the Minister, but rather by the Board.  Removing the time-frame from the E.O. contract does not give any more security.  Either party may terminate the contract with two months notice.

The contract should be performance based and the Board are indicating that they are happy with the present arrangement in the interest of the Executive Officer.

Lisle Snell said he felt that under the current arrangement he was unable to dictate the policies of the Board knowing that he may no longer be employed after June.

Robin Graham said the Board were under the impression that the E.O. had responsibility for staff etc.  It has been pointed out that the “Bureau” has these responsibilities, therefore these points should be rectified by delegating power and functions of Board to the Executive Officer.  This just regularises the existing policy.

Minister, George Smith said he felt the Executive Officer’s role should not be a position that can be destroyed at the whim of a Board.

I respectfully submit that it is an important statement in the light of the contract which was going to be entered into by Mr Snell shortly thereafter because the Court may recall that the provision in the contract did not provide for him, as it were, specifically to have a right to be heard or that he could have some such opportunity.  It will be my submission in due course that that right must be clearly implied by the common law when the Court is coming to deal with the statute, and I will be referring to general principles but also to Judicature Ordinance of Norfolk Island.

What particularly was there, in presence of Mr Snell, was a statement and an assurance - one might say almost a promise - which has been referred to in some of these legitimate expectation cases that his position would not be destroyed at the whim of a board.  In other words, that he would have an opportunity to be heard or have an opportunity to - there be some cause or some grounds for his removal.  He was not just going to be arbitrarily removed.

Now, that is an important and significant matter, with respect, and I ask the Court to take it into account when one considers ultimately this question of legitimate expectations or promises that might, or representations that might have been made and can be taken into light in having in mind what that contract was intended to ensure between the parties.

The notice of motion was duly passed.  On that particular night, at page 738, there appears - that is on 3 March - that the Bureau delegated substantially all of its powers and functions under the Tourist Bureau Act - I will call it that; it is shorthanded - to Mr Snell - delegated important powers, 10, 11, 12 and 16 of the Act.  They did not delegate to him a responsibility for financial management or control and accountability.  They kept that to themselves.  But I make the point that here was a situation that they were expressing in a very real way their confidence in Mr Snell.  Here, at a time when he was just about to enter into the new contract which was, in fact, signed on 19 May, they were expressing their complete confidence in him by delegating to him all their powers and functions under the Act.

Now, in respect of that next element of their confidence in him and the likelihood of his continuation in employment, at exhibit C, page 740, I draw the Court’s attention to that.  Now, this I particularly put forward to the Court, not only for its contents as to the way in which the Bureau had obviously regard, and particularly the Minister for Tourism, speaking not only for himself but, clearly, for the Bureau, for the work that had been done by Mr Snell, the confidence he enjoyed from them, but it also makes quite clear what his status was, what his role was.  He says:

The position of Executive Officer is one of the most important positions in Norfolk tourism and is the lynch pin between the marketing people in Australia and New Zealand and Norfolk Island.

I am not sure whether it is going to be argued or contended in any way that my client was not an officer and, as an officer, was entitled to all the treatment that the cases have said, such as Ridge v Baldwin, that he is entitled to be heard before he is dealt with in any way in respect of his contract employment.  But I respectfully submit that when one reads exhibit C, one sees a statement of complete confidence in Mr Snell, and the situation which was adverted to by the Full Court in due course that he obviously, as it were, enjoyed the confidence and support of the board to the fullest extent.

That is why, of course, with respect, when there was some, as it were, indication that they wanted time to either consider the situation or have the meeting with the Executive Officer and the Minister, I say, with respect, Mr Sanders did not hesitate to get rid of that board, get them out of the way and put in a new board, as was found both by the trial judge and by the Full Court, who would do his bidding and behest and do what he required them to do and that was to get rid of Mr Snell.

Now, with respect, so far as the signing of the contract was concerned, that was, I think, dealt with and the Court was referred to this by my learned friend yesterday, at the meeting of the - - -

KIRBY J:   What is the relevance of this.  I thought, Mr Cook, you are now on the question of unlawful interference in the contract.  You have finished misfeasance, have you?

MR COOK:   Yes.  I am sorry, I - - -

KIRBY J:   Well now, what is the relevance of the signing of the contract?  That is at the beginning of the process.  We have to focus, have we not, on the interference in the contract once it was signed.

MR COOK:   I was simply adverting to the circumstances preceding the signing of the contract, the - - -

KIRBY J:   But what is the relevance of that, to the interference by Mr Sanders in the contractual relations?

MR COOK:   Particularly in respect of the - if I have to fall back on it, I have to look at that, your Honours, is that if I have to establish in that that either he just prevented the performance of the contract by terminating it.  If that is so then he has prevented my client from going further.  Then I do not have to deal with the questions necessarily of breach, of particular breaches of the contract.  It is always my claim that the termination of the contract was sufficient but I had to have the fall-back situation that if it was suggested that that was not so and I had to establish a - that the question of whether there had been a breach of the contract or not been a breach of the contract by failing to give my client an opportunity to be heard, because it has been claimed here, as I understand it by my learned friend, that he was under no greater obligation than the board was under an obligation.  In other words, if the board did not have to give him a hearing, then the Minister did not have to give him a hearing; and that has been put forward.

I appreciate what your Honour is saying to me and as far as my respectful submission is concerned, on the basis of the tort which was proceeded with at all relevant times, it was sufficient to show that there had been an inference with the performance of the contract.

The authorities which I have intended to refer to the Court were put together by me in the bound material which has been put before the Court.  The earlier decision, of course, in respect to this particular matter was the case of Quinn v Leathem which was, I suppose, the seminal case so far as the question of the interference with or inducing a breach of contract.  It deals with the wrongful interference in contractual relationships in the way that was particular dealt with by Lord Justice MacNaghten.  I refer to the report of which I have of Quinn v Leathem (1901) AC 495, and is included in full in the material I provided for the Court, but I particularly just wanted to refer the Court to what was said at pages 534 through to 537. Again, without taking the time, as to what were the rights of the plaintiff and his opportunities as were referred in that case not to have his rights interfered with.

It is a classical statement and I do not want to take the Court’s time.  I am sure the Court is familiar with it.  In the middle of page of 534, headed, “1.  As to the plaintiff’s rights”, then those rights are dealt with, that there is any interference with his “liberty to deal with other persons” and here I am talking about enjoyment of performance of a contract that has been entered into and it appears to be entirely satisfactory to both parties involved in the contract.  I do not think it is necessary for me, with respect, to spend time reading the principles which are stated in Quinn v Leathem, because I intend to pass from them to show how the tort is developed.  I intended to read down to the middle of page 537, ending the words “greatly extending its operation”.  I will not, with respect, in view of the time, take the Court’s time in dealing at length with that particular decision.

The next case which seems to touch upon the principles which deal with procurement of breach of contract in so far as they relate to wrongful interference with performance is the matter of Thomson v Deakin & Ors, which is the second of the authorities that I have included in my list.  I have simply extracted the headnote as a matter of convenience, intending to read from the bottom of page 675, which is reproduced in the list of authorities, through to the bottom of page 679.  Again, I will not take the Court’s time by reading at great length in respect to that.

The next authority is that of Emerald Construction Co Ltd v Lowthian and Others, and that is the next authority in the bound volume.  Again, I have simply included the headnote for personal convenience and I wish to refer to the judgment of Lord Justice Denning, the Master of the Rolls, as appears at page 700, over to page 701, and this particular extract was referred to in Mengel’s Case as establishing the principles relating to recklessness.  Towards the bottom of the page there commences, about two‑thirds down the bottom of page 700:

Such being the facts, how stands the law?  This “labour only” subcontract was disliked intensely by this trade union and its officers.  But nevertheless it was a perfectly lawful contract.  The parties to it had a right to have their contractual relations preserved inviolate without unlawful interference by others.  If the officers of the trade union knowing of the contract, deliberately sought to procure a breach of it, they would do wrong.  Even if they did not know of the actual terms of the contract, but had the means of knowledge - which they deliberately disregarded - that would be enough.  Like the man who turns a blind eye.  So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong.  For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not.  Some would go further and hold that it is unlawful for a third person deliberately and directly to interfere with the execution of a contract, even though he does not cause any breach.  The point was left open by Lord Reid in J.T. Stratford & Son Ltd v Lindley.  It is unnecessary to pursue this today.  Suffice it that if the intention of the defendants was to get this contract terminated at all events, breach or no breach, they were prima facie in the wrong.

Now, the findings of the learned trial judge, having gone quite clearly into the reasons why he found that, was that, indeed, Mr Sanders was in vigorous pursuit of an agenda of his own and was determined to get the contract terminated whether it was a breach or not a breach.  His Honour made those particular findings on the evidence which was before him, and I respectfully submit his Honour was justified in making those particular findings.

The development of the tort then - the references that I want to, as the tort developed, was proceeded to - the next authority dealing with that is Daily Mirror Newspapers v Gardner & Others, which is the next report and that appears - again, I have taken the headnote of that.  Unfortunately, I apologise to the Court, that my copy is such that I have not the appropriate reference.  If the Court will excuse me from getting it.  It is included in the documents which I have handed up to the Court and I apologise that it has been cut out with the binding of the material.

KIRBY J:   The citations are on the front cover sheet.

MR COOK:   Yes, I am sorry, I apologise. I should have referred to the fact that it is in (1968) 2 All ER 163 and I want to refer to what is at page 167 to page 168. At page 167 the material that is in the judgment of Lord Justice Denning appears, I think, at the very bottom of the page 166, going on to page 167 and page 168.

The plaintiffs put their case in law in two ways.  First, they say that the defendants are seeking to induce the wholesalers to break their contracts with the plaintiffs.  Secondly, they say that the defendants are using unlawful means to injure the trade of the plaintiffs -

and then:

The first point (on inducing breach of contract) is based on the principle stated by Lord MacNaghten in Quinn v Leathem, following Lumley v Gye:

“ . . .it is a violation of right to interfere with contractual relations recognised by law, if there be no sufficient justification for the interference.”

The contractual relations which are here said to be interfered with are the contractual relations between the plaintiffs and wholesalers.  So we have to see what those relations are. 

And then he said, down towards the bottom of the page:

It is said that the defendant did not know the terms of the contracts between the plaintiffs and the wholesalers, especially as the evidence is so meagre as to those terms.  The answer was, however, given by this court in Emerald Construction Co Ltd v Lowthian.  Even though the persons who induces a breach does not know the precise terms of the contract, he is acting unlawfully if he says to himself:  “whether it is a breach of contract or not, I care not.”  If he induces a breach of contract recklessly, careless whether it is a breach or not - turning a blind eye to it - he is liable for interfering with contractual relations.

Then it was said that the defendants did not directly interfere with the contracts between the wholesalers and the plaintiffs.  They did not exert directly any pressure or inducement on the wholesalers:  at most they only did it indirectly by recommending the retailers to give stop orders.  That is true, but I do not think that it is an answer.  Counsel for the defendants relied much on D.C. Thomson & Co Ltd v Deakin.  He said that, in order to be actionable, the interference has got to be direct, but as at present advised, I think that that is an undue restriction of the principle.  I do not think that the tort is so narrowly confined as the court there stated.  I associate myself with what I gather to be the view of Viscount Radcliffe expressed in the course of his opinion in J.T. Stratford & Son, Ltd v Lindley, mentioned in Lord Wilberforce’s Book on Restrictive Trade Practices and Monopolies (2nd Edn.), para. 2605.  It seems to me that if anyone procures or induces a breach of contract, whether by direct approach to the one who breaks the contract or by indirect influence through others, he is acting unlawfully if there be no sufficient justification for the interference.

In this particular case, of course, there was, I respectfully submit, no justification.  None was pleaded; none was ever sought to be raised.

GAUDRON J:   There was justification given by statute, in a sense, providing the statute was complied with.

MR COOK:   Yes, that everything that was done or impliedly required to be done had to be done, that the statute was carried out.  I appreciate that that is so on the question of justification.  In many of the cases, justification is referred to as the substantial sort of matter of whether they would appear to have appropriate material on which they could, as it were, say it was right and proper.  I will be referring the Court to the S.O.S. Kinderdorf Case where, clearly, the Privy Council made reference to this question of justification on the basis that it related very much to the matter of the substance.

HAYNE J:   I would be assisted if, after the adjournment, you would answer two questions:  one, is there any Australian decision which extends the tort to a wrongful interference short of breach; two, is there any authority, whether here or overseas, which says that want of procedural fairness is for the purposes of this tort a wrongful act.

MR COOK:   Yes, I will do my utmost to comply, your Honour, with that request.

GLEESON CJ:   Well now, Mr Cook, how long do you think it will take you to conclude your submissions?

MR COOK:   Your Honour, doing the best that I possibly can make any estimate, and not wishing to leave anything unattended, but on the other hand conscious very much of time, your Honour, I believe I may be able to complete my submissions in 45 minutes; thereabouts, your Honour.

GLEESON CJ:   And how long do you think you will need for reply, Mr Garling?

MR GARLING:   Your Honour, I would hope to deal with it in something of the same order but, if it is more convenient to the Court, I am content to put any reply to Mr Cook’s submissions in writing.

GLEESON CJ:   We will adjourn until 2.00 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Cook.

MR COOK:   Yes, may it pleases the Court, if I might attend to the matters that were raised by his Honour Justice Hayne just before the adjournment.  In the time that has been available to me and the inquiries I have endeavoured to be able to make, first of all, I have to say that as far as I can see, the only case which seems to deal with the matter that was raised in the first question, whether there has been any wrongful interference short of breach, as it were, wrongful interference with contractual relationships, is what was originally said in Heggie’s Case (1906) 3 CLR 686, which is one of the first of the cases in the High Court and, in particular, without wishing not to, in any way, perfectly deal with that matter before the Court, at page 697 they deal with what they say “rules or doctrines” which apply to this type of case. It says:

The first rule is that any interference with the rights of another, which in fact occasions damages to him, is actionable, unless such interference is authorized, or justified, or excused by law.  In this proposition the term “rights” includes the right which every man possesses to the free enjoyment, subject to any specific rule of law, of his personal liberty; which, again, includes freedom to make, subject to any specific rule of law, such employment of his capacities, mental or physical, as he may think fit, and to invite the co-operation of any person he may think fit in any enterprise in which he proposes to engage.

And I can simply only say that appears to provide some grounds for saying that if there is any interference in the contractual rights of employment or enjoying performance than this, that is authorised, justified or excused by law.

I do not know of any other cases, and I have to say that I have made a most considerable research as best I have been able to in the facilities and the time available to me, and I am not complaining of any lack of opportunity over the last five or so years, but there are very few cases in Australia dealing with this tort of wrongful interference in relationships; contractual relationships that I am able to inform the Court about. 

There was Short’s Case, I think, which has been referred to and is the subject of mention in the judgments of the Full Court and of his Honour the trial judge.  But there has not been any development in Australia, as I apprehend, when I finish putting my submissions to the Court on the development of the tort in England, that really have brought the situation to the courts to being able to deal with the matter of prevention of performance of the contract without a breach being involved.  I will refer the Court very briefly and quickly to those matters which are all the subject of the cases which I have already provided for the Court.

I respectfully submit the time might well arrive when it is necessary to review, in view of the development of economic torts - not necessarily to, as it were, expand it or take it beyond particular limits which are not appropriate in any way or to make it wider but simply to bring it up to line with what seems to be the developments, certainly which have taken place in England and seem to have received the sanction of the House of Lords, as I will briefly refer to in a moment.

KIRBY J:   There could be some reasons of principle or policy to not expand it in that it might transfer battles that presently take place before industrial tribunals into the ordinary courts of the land upon contentions that trade unions or others have interfered with contracts between parties.  That could perhaps be a development which was out of line with the statute law of Australia.

MR COOK:   Yes, well, that might be so, but it might be possible to consider it very much in the situation of an individual’s rights which may often be very much different to those which deal with particular classes of people or large groups in the community.  I appreciate your Honour’s point and I understand there may be some concern about expanding it.  I simply say that to do what has been determined in England and the way it has been done, which I will shortly take the Court to, has done no more than to bring it into a reality.  You see, with respect, your Honours, Lord Justice Denning dealt with it in a case I will briefly refer the Court to.  Right back in Lumley v Gye Lord Justice Denning made it quite clear that one of the principles in Lumley v Gye was the prevention of performance of the contract and it is about time, maybe, that the matter was looked back into the very roots of the law which has developed or come from that to find out where we have come from to see what we really have.  I would respectfully submit that in a moment, as I will be putting matters to the Court, that that is a matter of consideration of the Court.

So far as the other matter that Justice Hayne raised with me, the want of procedural fairness, that is, being regarded as a wrongful act, I have not been able to find any such authority which precisely says in those terms - and it is very difficult to find anything about what is a wrongful act.  In Quinn v Leathem which I have already referred the Court to and which is in the bound volume of authorities I have handed up, at page 539 they there refer at about, I suppose, two-thirds of the way down the page - I am talking of the right-hand page of the materials handed to the Court - they there said:

no one’s right was infringed - no wrongful act was committed -

if, indeed, the wrongful act be the infringement of a right, and it may very well be argued that where, for instance, you have necessarily implied in the statute, such as this statute, the principle of common law that where an individual is concerned and his status or livelihood or an adverse decision which could affect his reputation could be made by exercising a statutory power, then it has to be exercised in accordance with principles of natural justice, and that is giving a person a hearing and that is necessarily to be implied in the statute and it would be my submission that that, of course, is the situation in this present case.

Therefore, that if you are in a position where the wrongful act is the want of procedural fairness occasioned to somebody exercising a statutory power and not providing that right to the individual to be heard which is implied in the statute, then that is a right which has been infringed and it is a wrongful act.

HAYNE J:   The nearest analogy that I have thus far been able to find is wrongful acts committed in the course of administration of the affairs of a company which might have been lawful if proper procedure had been used, may be sufficient, according to Lord Wedderburn, and there is a reference to two cases:  Volkswagen Canada v Spicer 91 DLR (3d) 43 and Prudential Assurance v Newman Industries (No 2) (1982) Ch 204.

MR COOK:   I thank your Honour very much, indeed, for that assistance and I regret that I was not in a position of having been, myself, able to put forward that material obviously in a desire to help the Court in my functions as counsel and I regret that I was not able to assist in that way but I thank you for that reference.  I would respectfully submit that if, indeed, there is an exercise of an authority or a power, particularly if there is that one by statute and there is this implied requirement, then perhaps even more so than just in the affairs for company in those cases that your Honour has referred to, there may very well be a principle to be applied, that a wrongful act can be such denial of procedural fairness which should be accorded by a proper exercise of the statutory power.

May it please the Court - and I thank you, your Honour, indeed, for that assistance in drawing the Court’s attention to those particular authorities - if I could pass then to the matters that I was raising about the development of the tort and quickly do so and, again, I do so in my clear appreciation of the time constraints.  I am sure the Court understands that I am not complaining about that, I am trying to co-operate and seek to do so.  The reference that I had made in the Court, I think, last, was the Daily Mirror Case and what was said by Lord Justice Denning, and then I was going to pass from that to Torquay Hotel Co Ltd v Cousins (1969) 2 Ch 106, and particularly, again, I have simply, for the purposes of convenience, tendered the headnote, and also I will be referring to, quickly, pages 137 through to page 141, without taking the Court at length in any way to it.

At page 137 at about the middle of the page the learned Master of the Rolls said:

The principle of Lumley v Gye extends not only to inducing breach of contract, but also to preventing the performance of it.  That can be shown by a simple illustration -

and he proceeds to deal with various instances.  Then at page 138 he passes to what he describes as “The principles of law”, and he said:

The principle of Lumley v Gye is that each of the parties to a contract has a “right to the performance” of it:  and it is wrong for another to procure one of the parties to break it or not to perform it.

GLEESON CJ:   Yes.  That is the fundamental problem though, is it not?  Rightly or wrongly, the decision in the Full Court turned upon the proposition that the direction given to the Bureau was not a direction to break the contract, it was a direction to terminate the contract, and the contract could have been brought to an end lawfully and that there was no direction, or even intention, on the part of Mr Sanders that the way the Bureau would go about dismissing Mr Snell would be in breach of contract.

MR COOK:   Your Honour,as I understand it, to terminate the contract was to prevent his performance, was to bring the opportunities for performance and the enjoyment of rights and so forth under it to an end.  It was preventing the contract being performed.  I have appreciated - - -

GLEESON CJ:   Once the contract was properly brought to an end, no further question of performing it arose.

MR COOK:   I appreciate what your Honour has said.  The question of whether it was rightly brought to an end, of course, is a matter that has, of course, been raised and has been argued in the submissions, particularly those that I put forward on the cross-appeal, as to whether there was, as it were, a rightful bringing to an end of a contract or whether there was a breach of the contract in what was done with the direction.  Here again, of course, may it please the Court, if the Full Court made some particular finding on the law - you see, one of the things that the Full Court found, and this was a difficult matter, indeed, was that the direction could have meant that there was to be a compliance by the board with either 9(a) or 9(b), but it never was the case ever put forward by Mr Sanders that he could rely on 9(a).  He only ever put forward the case, as I understand - there was no justification pleaded, nothing raised, but, indeed, the difficulty about all that was that when one looks at his evidence in the case he says that when he received the report from Ernst & Young then his decision was immediately that his term of office must be terminated.

Indeed, the evidence which was before the trial judge - all of this is, I think, reported in my submissions - is that the Bureau, when it met, said - and the evidence of Mr Horton was that the reasons for the termination was the direction of the Minister and the report of Ernst & Young.  The report of Ernst & Young never came into evidence.  It was never replied upon in any way - it came into evidence on a different basis.  I apologise for that.  It never came into evidence as the truth of the facts or matters contained in the report, it came into evidence as something to deal with the particular state of mind of Mr Sanders.

GLEESON CJ:   Suppose the direction that had been given by Mr Sanders to the Bureau had been expressed in the following terms, “You are directed to terminate Mr Snell’s contract of employment pursuant to clause 9(b) by giving him two months notice.  Do not attempt to terminate it by giving him two months pay in lieu of notice.”

MR COOK:   Yes, your Honour.

GLEESON CJ:   Now, what would have been the consequences of that?

MR COOK:   Short of being able to argue whether he had done that without giving the hearing to my client, I suppose, in fact, so long as he gave a hearing or some opportunity to be heard and then gave such a direction in those terms, I believe that he probably could give such a direction in those terms.

GAUDRON J:   But absent the hearing?

MR COOK:   Yes, absent - no, not absent the hearing.

GAUDRON J:   Very well, assume there was no hearing.

MR COOK:   Assume there is no hearing, then I would submit that the direction would not be a valid direction because he had to give a hearing because ‑ ‑ ‑

GAUDRON J:   And so it would still be - constitute the tort of interfering in the contractual relations of others?

MR COOK:   I would say so, yes, because he stills has to have the hearing because there was a right in my client, as I would claim, under the implied provisions of the common law read into the statute in view of cases such as Ainsworth and Kioa v West, there was the implied term written into the statute that he had a right to have a hearing about it before it was given.  So I adhere to that quite strongly, with respect, and I think the Full Court said that.

GLEESON CJ:   Well, I thought you also added this morning that he had no power to give such a direction at all.

MR COOK:   Well, first of all, I said that he had no power to give such a direction because he exceeded his powers under the Act, under the Tourist Bureau Act, because it went beyond what he might reasonably be expected to deal with.  If you look to see what were the parameters of his powers, one of the things that I raised about that was because the Bureau had the right to appoint persons and because of conventions, it might very well be open to argue that he did not have the power to give such a direction.  He certainly had power to give directions under 15.  There is no doubt about that, but whether this particular type of one directly affecting an individual in his employment, I would respectfully submit is another matter all together.

CALLINAN J:   Mr Cook, there is no reason why the Bureau could not have been joined as a defendant, I take it.

MR COOK:   It is very difficult, indeed, to appreciate that, your Honour.  To what extent they might have been able to claim that they were endeavouring to do what they were told to do or claim some form of protection, I have raised that in my submissions and matters that I have put forward before the Court as to what were the entitlement of somebody who acts in the nature of the Minister directing somebody to do something and to which they have to give effect.

CALLINAN J:   But you would have had an argument, if some of the things you have put to us are correct, that he had never been properly terminated anyway because the reappointed board or the new board was not duly appointed and would not have, for that reason, been able to terminate his employment.

MR COOK:   Well, if there was, indeed, such an action that may have been available, it would not have prevented this action being brought.

CALLINAN J:   No, I am not suggesting that.

MR COOK:   I am sorry if I misunderstood you, your Honour.

CALLINAN J:   No, I am just saying that some of these difficulties which we have been discussing would have been avoided had the Bureau been a defendant.

MR COOK:   Well, certainly I think very anxious consideration was given to that matter.

CALLINAN J:   Either additionally or in the alternative to your client.

MR COOK:   I think it was because of certain difficulties which were perceived and so forth in taking that course, that course was not taken.  I think that is all I can say, with great respect, to the Court.  It is not as though, in other words, it was somebody that was recklessly indifferent to that situation.  Consideration was given quite considerably to all the avenues that might be properly and reasonably explored.

GLEESON CJ:   Mr Cook, one small matter.  You are still pursuing an argument supporting the judgment of Chief Justice Beaumont, are you not?

MR COOK:   Yes, indeed, I am trying to do so, your Honour.

GLEESON CJ:   Now, what I wanted to ask you about that - and this question is irrelevant, I think, to the interference with contractual relations argument, but it is relevant to the basis on which Chief Justice Beaumont decided the case.  Was there any finding or evidence of duress in relation to the acceptance of the two months pay in lieu of notice except the statement made by your client himself that he was acting under sufferance and duress?

MR COOK:   Well, there was a finding, as his Honour said, that it had not been pleaded, had not been raised or had not been pleaded as a defence to the fact that there had been acceptance or that the contract had been varied by this.  His Honour dealt with that.  Certainly he spent a bit of time dealing with this.

GLEESON CJ:   We can look at what he said.

MR COOK:   Yes, thank you, your Honour.  I appreciated all that and ‑ ‑ ‑

GLEESON CJ:   But on the matter of duress, I know your client said he was doing that under duress, but was there any finding as to what the duress consisted of?

MR COOK:   The duress was having to accept the situation that he did not want to accept in the circumstances in which it happened and, as I understand it, his Honour - I do not want to mislead the Court by referring to matters which may not have been actually in the evidence - that is one of my problems - but I certainly know that his Honour went into this question of the duress to quite a considerable extent.  If I can just simply, again, give the Court that assistance without going to reading anything from his Honour’s judgment but simply refer to where his Honour deals with it. He dealt with it at some length, actually.  What his Honour said at page 913 of volume 4, was this, if the Court please:

Although the payment of two months’ salary was made, its receipt should not, in my view, be seen as an election by the plaintiff, in the words of Isaacs J, “to get some advantage to which he would otherwise have been entitled ...”.  The plaintiff made his position clear at all times that his preference was to remain in his position, but that he was forced to accept the reality that the defendant, as the Minister administering the Act, wanted to remove him immediately.  Faced with that reality, the plaintiff moved out.  But it would be wrong to characterise his conduct as an acquiescence in what had been done to him, or as a waiver of his rights.  The plaintiff was not afforded any free choice in the matter.  True, the plaintiff might have declined the payment made, but he had not then sought legal advice, and he must have felt that, in the circumstances, he ought to be compensated for more than the amount then paid (two months’ salary).  When he did seek legal advice, not long thereafter, his lawyer demanded compensation from the defendant.

In any event, as has been seen, waiver was not pleaded by the defendant.

Nor was it pleaded by the defendant, in line with the tenor of Mr Foulds’s advice, that the plaintiff had agreed to accept the payment in lieu of notice.  For the reasons already given in discussing whether there had been a waiver, in my view, it would not be proper, in all the circumstances, to infer that any such agreement had been made by the plaintiff.

GLEESON CJ:   Thank you.

MR COOK:   May it please the Court, if I can just refer, as I was, to the findings of Lord Justice Denning in the Torquay Hotel Case.  What his Honour then went on to say this is about a third of the way down the page just beyond point C, between C and D:

The time has come when the principle should be further extended to cover “deliberate and direct interference with the execution of a contract without that causing any breach.”  That was a point left open by Lord Reid in Stratford (J.T.) & Son Ltd v Lindley (1965) AC 269, 234. But the common law would be seriously deficient if it did not condemn such interference. It is this very case. The principle can be subdivided into three elements:

First, there must be interference in the execution of contract.  The interference is not confined to the procurement of a breach of contract.  It extends to a case where a third person prevents or hinders one party from performing his contract, even though it be not a breach.

Second, the interference must be deliberate.  The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it.

Third, the interference must be direct.

Now, he refers to that.  I did for the purpose of convenience in my submissions to the Court - and it is in my document in the summary - I did refer to that extract of the statement of Lord Justice Radcliffe referred to by the learned Master of Rolls and that was in page 330 of the report of Stratford & Son Ltd v Lindley (1965) AC 269 at 330 and that statement reads:

Then there would remain only the hiring contracts:  and one sees again how easily a slight difference in the framing of the embargo order might have avoided incitement to breach of contract, while still achieving a virtual cessation of the plaintiff’s business.  I cannot see it as a satisfactory state of the law that the dividing line between what is lawful and what is unlawful should run just along this contour.  The essence of the matter is that the defendants, conceiving themselves to be acting in the interests of their union, decided to use the power of their control of that union to put the plaintiffs out of business for the time being.  When and upon what conditions they would be allowed to resume their business was left in the air.  In my opinion, the law should treat a resolution of this sort according to its substance, without the comparatively accidental issue whether breaches of contract are looked for and involved; and by its substance it should be either licensed, controlled or forbidden.

And that was the statement which was adopted by the learned Master of the Rolls and I would respectfully submit that it has been later approved by the House of Lords.  I do not think it is appropriate that I should - I think eventually the Master of the Rolls says at page 141:

I put my decision on the simple ground that there is evidence that the defendants intended to interfere directly and deliberately with the execution of the existing contracts by Esso and future contracts by Alternative Fuels so as to prevent those companies supplying oil to the Imperial Hotel.

Can I just simply say here there is an intention to interfere in the contracts such as to prevent the cross‑appellant providing his services as he was and his services being enjoyed by the person who wanted those services. 

Now, the other final matter I want to refer to is Merkur Island Shipping Corporation v Laughton and Others (1983) 2 All ER 189 and there in the judgment of Lord Diplock, who wrote the judgment of the court, he refers at page 195 to the earlier principles stated in Thomson v Deakin, which I read out earlier the principles referred to by Lord Lindley, and then at the bottom of page 195 he said:

If there were any doubt about this matter, it was resolved in 1969 by the judgments of the Court of Appeal in Torquay Hotel Co Ltd v Cousins.  That was a case in which the contract the performance of which was interfered with was one for the delivery of fuel.  It contained a force majeure clause excusing the seller from liability for non‑delivery if delayed, hindered or prevented by, inter alia, labour disputes.  Lord Denning MR stated the principle thus:

and then he referred to that which I have read out:

Parliamentary recognition that the tort of actionable interference with contractual rights is as broad as Lord Denning MR stated in the passage I have just quoted is, in my view, to be found in s 13(1) of the 1974 Act.....but also “to interfere with its performance”, and treats them as being pari materia.

So I turn to the four elements of the tort of actionable interference with contractual rights as Jenkins LJ stated them, but substituting  “interference with performance” for “breach”, except in relation to the breaking by employees of their own contracts of employment where such breach has as its necessary consequence the interference with the performance of the contract concerned.

And so the intention that there was said was the intention to interfere with a performance of a contract rather than bring about a breach of a contract and I respectfully submit to the Court that this Court, although I am sure I am not able to refer the Court to any other authorities that deal with this matter, that the tort of wrongful interference with contractual relations is as advanced as particularly as last referred to in Merkur Island Case and it does relate to interference with performance of a contract and that there was in this particular case abundant material of the actual interference by the appellant in the performance of the contract because of his deliberate actions and so forth to bring the contract to an end and, therefore, by doing that he did actually bring about in the particular circumstances of this case and the whole of the material I put earlier to the Court today brought to an end to a contract which substantially was a contract wanting to be in operation and effective, both between my client and the Bureau, and there was every reason for holding that to be the case.

What happened was that that interference, that deliberate interference, that termination of a contract, all of which the learned trial judge dealt with in his reasons for judgment, was a deliberate and intended action and one that the defendant intended to bring the contract to the end at the earliest possible time, that he achieved that result and that, therefore, that should be a situation in which the determination that there was wrongful interference with a contractual relationship might be justified.

Now, with respect as to several other matters which I wish to draw to the Court’s attention to before I finalise my submission, the point that was raised, I think by my learned friend, was that the defendant had not had any idea of the way in which the Bureau had gone about terminating the contract.  If I have to deal with this, I only want to draw to the Court’s attention to this.  The point was actually raised by my learned friend in his examination in‑chief of Mr Sanders when he asked him whether or not he had received a fax that had informed him, as it were, what had happened at the Bureau and this was before and leading up to the tender by my learned friend of the exhibit which is exhibit 7 and exhibit 7 is the minutes of the Tourist Bureau which contain within them the reference to what had happened at the board and the resolution that had been passed that day because it was said there in exhibit 7, page 865:

It was resolved to terminate forthwith the employment of Mr Snell as Executive Officer and to pay him two months pay in lieu of notice, pursuant to Clause 9(b) of his contract of employment.

Now, with respect, the evidence on page 512 of volume 3 of the appeal books says, and it was led by my learned friend, no doubt on his instructions and, as best as I can recall, although I would wish to be not imprecise about this, he did actually have in his hand, and I seem to recall it, a fax document which bore at the top of it a date and time and it said:

And did you, at about 1 pm on 19 June 1992, receive a facsimile which I now show you?‑‑‑I actually thought that I received the first one in handwriting.

Right?‑‑‑But it would have - it was of the same effect.

Right.  But you received that facsimile on 19 June, did you?‑‑‑Yes.

I tender that document.

And I said “No objection” and that was exhibit 7.  Now, I raise this point because it is suggested that there was no evidence that the defendant knew what had happened at the board.  Now, the Full Court found this and that was clearly an error in the finding of the Full Court and also of the trial judge because clearly that evidence was there, that before the actual termination took place at 2 o’clock Mr Sanders was aware of what had happened. 

Now, he did not repudiate that or he did not take any steps to say - he adopted it by his conduct.  He did nothing about it and, in my respectful submission, as I put forward in my submissions to the Court, particularly in regard to the application for special leave to cross‑appeal, the fact is that he, by his conduct and acquiescence, first of all, by doing nothing about it before the actual termination took place, knowing well what had transpired, must be taken to have accepted what had occurred as being an appropriate situation.

Whether that was right or wrong, it does not really matter, but he accepted it as being - knowing what had actually happened, he accepted it as being a satisfactory conclusion of the matter.  Indeed, when one reads the press release which he issued that night, which was tendered in evidence, one sees quite clearly that there is nothing in that press release which in any way seems to detract from the fact that what had happened with the Bureau and his instructions having been carried out, or them having dismissed Mr Snell, that there was anything wrong with that or that there was anything which was not appropriate or should be considered as being inappropriate and, therefore, one could say quite properly that he had accepted that situation as being a proper occurrence in how the contract had been brought to an end.

The other matter which touches upon this, of course, is his letter of - the second press release.  I do not want to take the Court unnecessarily to the documents and go through them, but if the Court would have regard, first of all, to the first press release in due course.  It is exhibited in volume 4 of the appeal books.  The letter particularly that I want to refer the Court to is his letter which was the second press release and in that he - I think your Honour Justice Kirby made some observations as to the manner in which he was obviously trying to put forward to the community that he had acted very properly and he should be commended for his prompt action and his strong action in the matter and so forth, but he did not at any stage - and this was on 26 June that he issued that second press release - he did not in any way whatsoever disassociate himself from what had happened at the Bureau or in some way say that something had happened which was not appropriate.

That is exhibit AK at page 836 and I respectfully submit that when one looks at it, one sees also quite clearly that as far as he was concerned, throughout the whole of this proceeding he was dealing with the dismissal of my client from his employment for cause and it does not lie in his mouth when one looks at it or have it be said, “Oh well, this was a dismissal without cause.”  If, indeed, one looks at that letter and all that had proceeded it beforehand so far as his reference to the Ernst & Young report, his giving the report to Mr Nobbs and telling him that, for instance, he was not to show the report to Mr Snell but he was to tell Mr Snell that it was because of what was in the report he was to resign immediately, all those sort of things showed quite clearly that what he wanted to do was dismiss him because of what was in the report. 

I do not say lightly that I do not believe that it is appropriate that it be advanced to the Court that the dismissal was without cause in this case when that is the situation which clearly emerges and when the evidence of Mr Horton, which was taken on this particular point and led by my learned friend as to the reasons for the termination, made it quite clear that the reasons for the termination were the report and the direction from the Minister and the report of Ernst & Young and that is a clear statement that that is what the board acted on and they, as it were, were the main issues.  Page 642 at the bottom over to the top of page 643 he was asked:

Agreement on - on termination of the employment?

Yes, reason for the termination?‑‑‑Yes, mm.

What was it?‑‑‑There were several.

They were?‑‑‑Firstly the Minister’s direction.

Mm?‑‑‑And secondly the Ernst & Young report which we had all read.  They were the two main issues.

And I respectfully submit that this is a case in which, despite the way the case was endeavoured to be conducted, that in a sense it was not the cause.  This was a dismissal of cause and in truth how the matter was dealt with by the direction which was given, the direction itself requiring that something be done by - steps taken by 10 o’clock that morning to have my client’s employment terminated at the earliest practical date gave absolutely no time for any possibility for anything to be said by my client or any proper, even, consideration of the terms of the report.  The Bureau was simply rubber stamping the situation.

I have raised in my submissions and, again, I simply refer to them, the appointments and the constitution of the Bureau and the unfairness which arose from the presence on the board appointed to deal with this particular matter, and quite clearly so, of somebody with whom Mr Sanders had frequently discussed the matter before the matter came up for hearing.  So there was considerable taint, I respectfully submit, to the proceedings which were before the board.

Now, it is my respectful submission that the Court will come to consider all these matters when it comes to consider the question of wrongful interference and whether what was done could be said to be inappropriate and improper interference.  I would submit that under the provisions of the Judicature Act of Norfolk Island - and I have given a copy of this to the Court in the bound material - section 10 requires a judge of the Supreme Court - it says:

Subject to the provisions of this Ordinance for giving effect to equitable rights and other matters of equity, the Supreme Court or the Judge shall give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or by any custom, or created by any Act, Imperial Act, Ordinance, regulation or by‑law in force in the Territory.

And I respectfully submit that when you have the ordinance such as the Tourist Bureau Act and where certain provisions are given - power is given to the Minister to make directions and those directions have to be carried into effect by the Bureau, then quite clearly to be read into that statute is the sort of restraint or duty or obligation which was referred to quite clearly by the High Court in the case of Kioa v West (1985) 159 CLR 550 and most particularly in the judgment of Justice Mason at page 584. There, at about point C on page 584 his Honour Justice Mason, as he then was, said:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

It is my respectful submission that - and when one reads in the other judgments of the Court, particularly the judgment of Justice Brennan, there is nothing whatsoever which detracts from that.  In my respectful submission, this decision was intended to be made, which affected the rights of an individual, as claimed here with my client, most adversely; first of all, in his status, his livelihood and his removal as an officer from the type of employment that he enjoyed and, secondly, from the point of view of the reputation. 

Now, in Ainsworth’s Case, as Justice Gaudron referred to yesterday and I have referred to that in my list of authorities, the protection of reputation was a matter which was said to attract the principles of procedural fairness and I respectfully submit ‑ ‑ ‑

KIRBY J:   Is your client a native of Norfolk Island?

MR COOK:   He was a native of Norfolk Island, born on Norfolk Island and lived all his life on Norfolk Island.  The history of his work endeavours were clearly laid out by the trial judge.  He had nowhere to go, with respect, your Honour.

KIRBY J:   Does the evidence show the population of Norfolk Island?

MR COOK:   The Norfolk Island population is approximately about 1,500 people with about 500 to 700 people from time to time on the Island.  So if one manages to come through the problems of availability of work and suitable work and so forth, the position of being executive officer and being the linchpin of the tourist industry, which was, I might say with respect and so found by his Honour, I think, in reference to be the major industry of Norfolk Island, then one has to have a considerable standing in the community.

To have it dashed in one’s face, as quickly and rapidly as this was, particularly with that press release, which, again, the Court I am sure is familiar with which refers to -and the Full Court dealt with at some length - the allegations of criminality which could not be excused from, was absolutely damming to my client in every possible way and there was such an interference with his reputation in every way which would have warranted the most careful consideration, as was contained in the letter of Mr Nobbs to Mr Sanders before all this virtually started, when it could have been stopped, except for Mr Sanders saying, “It’s too late and I think you are trying to direct the exercise of my discretion in a particular way and I’ll do things as I see fit and the matter is not up for discussion.  It is not up for any kind of negotiation.  You will do exactly as I say.”  Now, respectfully, I submit that what has happened is there has been a gross violation of his statutory obligations and duties and that has interfered with, most considerably, the effective performance of the contract that my client had with the Bureau. 

I have, I think, in my submissions dealt with the appellant’s written submissions and I do not believe that I can, in the circumstances, take any longer than I have to develop those matters.  I rely on my written submissions and I ask the Court if the Court will give, as I am certain it will, full consideration to that application for special leave which I ask the Court to grant me and then to consider my cross‑appeal.  I seek to uphold the decision of the trial judge, if necessary, to go further to ensure that the cause of action which was always before the Court was given its proper opportunity to be determined.  I do submit and uphold the decision of the Full Court.  If I am not able to do that, then the fall‑back position is sadly that which was touched upon by Justice Kirby. 

If I might finally deal with a matter.  In my submissions I have referred to the reference in Laker’s Case by the Master of the Rolls to the way in which - the duties of a court in dealing with matters of this kind.  I do not think it is necessary for me to repeat that.  I ask that the appeal be dismissed, that special leave to cross‑appeal be granted and that the cross‑appeal be upheld and that the determination of the court in the award of damages below be affirmed.

I rely on the principles expressly put forward both by the trial judge and the Full Court of the Federal Court as to the damages and the availability of damages.  I submit that no error has been made in the compilation of damages or the award of interest.  I have provided to the Court in the formal printed list of authorities a case which I was able to refer to dealing with the question of damages, aggravated and exemplary damages, and I included it to be cited on the appeal and that was Thompson v Commissioner of Police (1997) 3 WLR 403 and the principles there to be applied in assessing both aggravated and exemplary damages.

There seems nothing in that case which seems to suggest that it is not appropriate to have both heads of damage considered at the one time.  It is an interesting case in the sense that it endeavours to provide for limits on the amounts of verdicts which ought to be awarded for these things and it is interesting to see that they say that for exemplary damages the verdict should not be less than £5,000 and no more than £50,000, endeavouring, no doubt, to ensure that there is some kind of a cap, but they say that if you award less than £5,000 you should not award exemplary damages. 

It merits that type of consideration as to the contumelious behaviour and so forth justifying punitive damages that awards of those kinds are appropriate and I am talking, of course, the Court is just understands, in English moneys.  I did ask the Court and I will ask the Court to have regard to what I have overlooked in my hurry with the last of the cases that I referred to in my list of authorities and I ask the Court to read it and that is the SOS Kinderdorf Case and that deals with interference with contractual relationships, SOS Kinderdorf International and Another v Bittaye and that is a decision of the Privy Council in ‑ ‑ ‑

KIRBY J:   Can I ask you, if you were to succeed on the interference in contractual relations account but not on the misfeasance of public office, is it your submission that the principles for the computation of damages are the same in respect of both ‑ ‑ ‑

MR COOK:   Essentially the same, with respect.  I would say that one would have to reinstate, I suppose, what the Full Court took away, the $500, as they had a starting point and then they added to that, I think, the additional sums, I think, of $15,000 was added by the trial judge for aggravated and exemplary damages, so that I would have to start with the $500 and then say that the $50,000 damages which were assessed as being appropriate in the circumstances would be appropriate aggravated and exemplary damages and I do so submit.

Finally, might I say if, indeed, the Court is entirely against me and finds that the appeal should be upheld and so forth, I feel emboldened to ask in the circumstances, and I simply put forward for the Court’s consideration, that it is unknown for the courts in dealing with matters of costs which are entirely within their discretion to determine that a person they might consider unmeritorious should be deprived of their costs, not have to pay the other person’s costs but be deprived of their costs.  I ask the Court to give consideration to that matter.

GLEESON CJ:   Thank you, Mr Cook.

MR COOK:   I thank the Court for listening.

GLEESON CJ:   Mr Garling, you kindly offered before lunch to put your submissions in reply writing, but there is one matter I think Justice Hayne wanted to raised with you.

MR GARLING:   I did and I meant it, your Honour.

HAYNE J:   Mr Garling, in the course of your reply I would be assisted if, in relation to the question of whether the claim was put in terms of unlawful interference as opposed to unlawful procurement of breach, if you would deal with what appears at the following pages of the appeal book:  pages 35, 63, 95, 152 and 154 and all of which pages, I think, reference can be found

to unlawful interference in distinction to unlawful procurement and to deal with that in light of your own submissions in reply, or your side’s submissions in reply between 194 to 196, the trial judge’s treatment of the matter commencing at 873.

MR GARLING:   Thank you.  Certainly, your Honour.  May I just, not by way of reply, just give the Court a reference on this question of inducement of breach of contract as against intentional interference to a passage in the joint judgment of this Court in Mengel at 342.

KIRBY J:   One would think, though, one would have to look at the authorities, that conceptually interference in contractual relations is the wider circle and breach of contract and such an interference as induces a breach of contract is a smaller circle within the wider circle, that conceptually the one is included in the other.

MR GARLING:   It may be, your Honour, that there are two circles that never quite meet and there might be an umbrella term trying to deal with those two separate circles.  We would see it, your Honour, as two circles rather than one, two separate rather than one within the other.

KIRBY J:   It does seem as if the circles were at least circling around the presentation of this case, but perhaps you will persuade us otherwise.

MR GARLING:    .....letter of particulars, your Honour, but would your Honours permit me 14 days to put submissions in reply?

GLEESON CJ:   Yes, certainly.  Yes, Mr Cook?

MR COOK:   Would your Honour the Chief Justice just permit me to say something as the representative of the Bar or the legal profession in Norfolk Island?  May we congratulate your Honour on your Honour’s recent appointment.  The news of your Honour’s appointment brought, I might say, great pleasure to those practising the law in Norfolk Island, small in number though we are.  This is only the third case this century, I believe, your Honour, to come to this Court and I thank the Court, of course, as I have for its attention it has given to the matter, but I wish your Honour most especially a very long and satisfying career as Chief Justice.

GLEESON CJ:   Thank you.  My thanks to you and to your colleagues, Mr Cook.  The Court will reserve its decision and we will adjourn.

AT 2.52 PM THE MATTER WAS ADJOURNED