Twining v Curtis
[2014] ACTCA 19
•17 June 2014
ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS
[2014] ACTCA 19 (17 June 2014)
APPEAL – GENERAL PRINCIPLES – Security for costs on appeal – Single judge of the Court of Appeal of the Australian Capital Territory may hear and determine application for security for costs on appeal – Difference between security for costs at trial and security for costs on appeal – Factors to be taken into account in deciding application – Delay in filing application not sufficient to prevent application being successful – Impecuniosity of Appellant – Whether Respondent contributed to impecuniosity of Appellant – Appeal has little if any prospects of success – Application for security of costs allowed
TORT – Injurious Falsehood – Statements made in context of employment – Statements made in context of employment – Whether statements false – Whether statements malicious – Whether statement cause actual damage
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Supreme Court Act 1933 (ACT), s 37J(1)(k)
Court Procedures Rules 2006 (ACT), r 5302
Criminal Code 2002 (ACT), s 703
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187
Brocklebank & Co v King’s Lynn Steam Ship Co (1878) 3 CPD 365
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44
Ciappina v Ciappina (1983) 70 FLR 287
Cowell vTaylor (1885) 31 Ch D 34
Davey v Herbst (No 2) [2012] ACTCA 19
Drumdurno Pty Ltd v Braham (1982) 42 ALR 563
Farmwide Pty Ltd v Commonwealth of Australia [2013] ACTSC 74
Haskins Contractors Pty Ltd (in liquidation) v Sydney Airport Corporation Ltd [2002] NSWSC 267
Hughes v Janrule Pty Ltd (2011) 177 ACTR 1
Kennedy v McGeechan [1978] 1 NSWLR 314
Maher v Carpenter (2012) 7 ACTLR 216
Natcraft Pty Ltd (deregistered) v Det Norske Veritas [2002] QCA 241
National Bank of New Zealand Ltd v Donald Export Trading Ltd [1980] 1 NZLR 97
Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operators) Pty Ltd (1982) 7 ACLR 556
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Pearson v Naydler [1977] 3 All ER 531
Rainbow v Kittoe [1916] 1 Ch 313
Remm Constructions (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Riverside Nursing Care Pty Ltd v Minister for Aged Care (2008) 63 ALD 122
R v Meyboom (2012) 256 FLR 450
Save the Ridge Inc v Commonwealth [2005] FCA 355
Shedden v Patrick [1861-73] All ER 724
Twining v Australian Public Service Commission [2006] FCA 129
Twining v Australian Public Service Commission [2007] HCA Trans 87
Twining v Curtis (2008) 1 ACTLR 226
Twining v Curtis (2009) 3 ACTLR 174
Twining v Curtis [2010] ACTSC 115
Twining v Curtis [2011] (2011) 216 FLR 70
Twining v Curtis [2013] ACTSC 149
Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2013] ACTCA 24
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 55 of 2013
No. SC 178 of 2007
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 17 June 2014
IN THE SUPREME COURT OF THE )
) No. ACTCA 55 of 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SC 178 of 2007
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANTHONY ALBERT TWINING
Appellant
AND:JACQUELINE ANNE CURTIS
Respondent
ORDER
Judge: Refshauge J
Date: 17 June 2014
Place: Canberra
THE COURT ORDERS THAT:
Anthony Albert Twining give security in the amount of $25,000 for the costs of Jacqueline Anne Curtis of this appeal by lodging with the Registrar of the Supreme Court of the Australian Capital Territory $25,000 in cash or an irrevocable bank guarantee unlimited as to time in the amount of $25,000 in terms satisfactory to the Registrar within twenty-eight days from the date of this order.
The appeal be stayed pending the giving of the security as required in order 1.
If Anthony Albert Twining fails to give security, as required in order 1, within twenty-eight days from the date of this order, the appeal be deemed to have been dismissed and the Appellant is to pay the Respondent’s costs of the appeal to that date on a party and party basis.
Anthony Albert Twining pay the costs of Jacqueline Anne Curtis of the application for security for costs on a party and party basis to be paid on the judgment in the appeal or, if dismissed under order 3, upon the dismissal of the appeal.
IN THE SUPREME COURT OF THE )
) No. ACTCA 55 of 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SC 178 of 2007
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANTHONY ALBERT TWINING
Appellant
AND:JACQUELINE ANNE CURTIS
Respondent
Judge: Refshauge J
Date: 17 June 2014
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
The appellant, Anthony Albert Twining, appeals from a judgment of Master Mossop dismissing his claim for damages based on a cause of action in injurious falsehood in Twining v Curtis [2013] ACTSC 149 (Twining (No 5)).
Jacqueline Anne Curtis, the respondent, has sought security for costs of the appeal.
The proceedings
The proceedings arise out of the termination of Mr Twining’s employment with the Australian Public Service Commission (the Commission).
He commenced employment there on about 7 June 2004 and, on 5 November 2004, his employment was terminated.
He then applied to the Federal Magistrates Court for an extension of time to bring an application against the Commission, inter alia, quashing the termination decision and seeking judicial review of the decision. That application was dismissed on 10 November 2005. He appealed against that dismissal, which appeal was also rejected: Twining v Australian Public Service Commission [2006] FCA 129.
I note that Madgwick J did comment (in Twining v Australian Public Service Commission at [5]-[6]), however, that Mr Twining may have had an arguable case on various grounds on which he challenged the decisions, but the delay could not be excused, especially because of the difficulties attendant upon the likely disruption of public administration were the extension to be granted and the appeal upheld, which led to his Honour dismissing the appeal.
Mr Twining sought special leave to appeal to the High Court from the decision of Madgwick J but that application was dismissed: Twining v Australian Public Service Commission [2007] HCA Trans 87.
Mr Twining then commenced these proceedings against Ms Curtis on 14 March 2007. Originally, he pleaded his claim in negligence. There were a number of interlocutory proceedings about the adequacy of the pleadings (Twining v Curtis (2008) 1 ACTLR 226; Twining v Curtis (2009) 3 ACTLR 174; Twining v Curtis [2010] ACTSC 115; Twining v Curtis [2011] (2011) 216 FLR 70), the latter of which permitted Mr Twining to amend his Statement of Claim to plead the present and only claim of injurious falsehood.
The proceedings ultimately came on for hearing on 3, 4 and 5 July 2013 and, on 8 August 2013, Master Mossop entered judgment for the defendant. In his reasons, Twining (No 5), his Honour found
· the three pleaded statements said to have been made by Ms Curtis were not in fact made by her;
· the substance of one of the statements, but in a different form, could have been conveyed by Ms Curtis, but it was not false;
· in any event, it was not known to be false or otherwise said with malice; and
· it did not cause Mr Twining any damage, a conclusion that would have applied to each of the statements in any event.
It is against that decision that Mr Twining sought to appeal. His Notice of Appeal lists twenty-one grounds said to be errors of law and errors of fact or, apparently, both.
Security for costs on appeal
Rule 5302 of the Court Procedures Rules 2006 (ACT) provides for security for costs on appeal. In Hughes v Janrule Pty Ltd (2011) 177 ACTR 1 at 12; [61], Penfold J held that a single judge of the Court of Appeal may, under s 37J(1)(k) of the Supreme Court Act 1933 (ACT), hear and determine such an application.
I considered the authorities and the law and principles to be drawn from them as to such applications in Davey v Herbst (No 2) [2012] ACTCA 19.
As I there discussed, the purpose of such applications is to protect a successful litigant from the injustice caused by being forced to contest a claim for a second time without a probability of obtaining the costs thus expended and thereby to provide a fund to defray such costs and to discourage frivolous and unmeritorious appeals.
I noted, also, that there was a difference between applications for security for costs at trial and on appeal, a position that has been clear since as long ago as 1885: Cowell vTaylor (1885) 31 Ch D 34 at 39. See also Rainbow v Kittoe [1916] 1 Ch 313 at 318. As was pointed out in Riverside Nursing Care Pty Ltd v Minister for Aged Care (2008) 63 ALD 122 at 125; [14], the appellant “has had its day in court”. Thus, there is, in an appellate situation, a decision in the respondent’s favour, which must be taken to be correct until set aside: Kennedy v McGeechan [1978] 1 NSWLR 314 at 315.
A particular difference is that in the case of an appeal, unlike the case of a trial, impecuniosity of an individual is a ground for the making of an order that an appellant provide security for costs. The prospects of success are also relevant, despite the difficulty in some cases of assessing them.
I gratefully adopted a summary of the relevant factors to be taken into account that were identified by Jerrard JA in Natcraft Pty Ltd (deregistered) v Det Norske Veritas [2002] QCA 241 at [9] as follows
· The appellants’ prospects of success on the appeal (see Banks v Copas Newham Pty Ltd [2001] QCA 526).
· The financial position of the appellants. Where an appellant is without funds or assets this factor is important, and provides what this court has described as a “persuasive” reason for ordering security for costs. This is because that appellant would be unable to satisfy any order for costs made against the appellant should the appeal be unsuccessful (see Banks (supra) and Ivory v Telstra Corp Ltd [2001] QCA 490).
· The fact an impecunious appellant, impecunious at trial, has already had a “day in court” and lost on the merits. That circumstance increases rather than reduces the likelihood of the exercise of a discretion in favour of an order for security for costs (see Ivory (supra)).
· The fact that the appellant blames impecuniosity on a respondent who asks for orders for security for costs. This matter has a diminished significance at appellant level, by contrast with its significance at trial level (see see de Jersey CJ Jackson v Coal Resources of Queensland Ltd [2000] QCA 413).
· That it is inappropriate to order an impecunious appellant to provide a greater security than is absolutely necessary (see Young CJ in Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 at 4).
· That the giving of a personal undertaking by one who stands behind a company does not preclude an order for security for costs (see Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 at 316).
· Whether there has been any delay in bringing the application for security for costs.
The application – impecuniosity
There was no contest about the question of whether Mr Twining was impecunious. He conceded that this was so. In his written submissions he said
7.The appellant concedes that he will not be able to meet the respondent’s costs if the appeal is unsuccessful.
I take this also to mean that if security of costs were to be ordered, it is likely that the proceedings will be brought to a halt; Mr Twining indeed submitted that an order for security for costs will terminate the appeal.
It is relevant that, to date, there have been a number of orders for costs already made against Mr Twining. Those made by the Federal Magistrates Court and the Federal Court have been taxed. They were taxed in the sum of $40,000 and $15,860 respectively.
There was no evidence before me as to whether those costs have been paid. Ms Curtis has not sought to enforce other costs orders already made.
The application – delay
Although not raised by either party, it seems to me that I need to address the issue of whether there has been delay in making the application. It is a relevant factor, as I have noted above (at [16]). That Mr Twining has not raised it may be because he is not legally represented. As I have described in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40]-[43], I must, within reason, consider relevant issues that may affect the case of Mr Twining but without disadvantaging the other, represented, party.
Mr Twining filed his Notice of Appeal on 30 August 2013. Ms Curtis made this application for security for costs on 13 November 2013. The solicitors for Ms Curtis had, however, written to Mr Twining on 15 October 2013 advising of their intention to make an application for security for costs. Mr Twining rejected the proposal that a timetable for such application be agreed.
On 18 November 2013, Mr Twining filed an amended Notice of Appeal.
In Farmwide Pty Ltd v Commonwealth of Australia [2013] ACTSC 74 at [36], Master Harper referred to the relevant authorities and noted
There is ample authority for the longstanding principle that applications for security for costs must be brought promptly.
In that case, his Honour declined to order security when the delay involved there was four years after the commencement of the proceedings and the actual application was made nine months after the first letter from the defendant seeking the deposit of security.
In Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2013] ACTCA 24, Nield AJ ordered security where the Notice of Appeal was filed on 30 August 2012, the respondent sought payment of security by letter dated 2 October 2012 and the application was made on 6 February 2013. The issue of delay was, however, not canvassed in that matter.
I do not consider that there has been any delay such as to prevent Ms Curtis’ application being granted.
The application – impecuniosity caused by the applicant
For the same reason as referred to above (at [21]), I need to address whether the admitted impecuniosity of Mr Twining was caused or contributed to by Ms Curtis, though this was not raised by Mr Twining.
While, as noted above (at [16]), this factor has reduced significance at the appellate level, it is still relevant.
Of course, the court must be satisfied of the causative relationship between the actions of the respondent and the impecuniosity, as set out by C A Sweeney J in Drumdurno Pty Ltd v Braham (1982) 42 ALR 563 at 571.
The position here, however, is relatively clear. Mr Twining says that the termination of his employment with the Commission, allegedly caused by the claimed false statements of Ms Curtis, is the cause of him not obtaining further employment and thus being impecunious.
Master Mossop, however, (in Twining (No 5) at [59]) was not satisfied that the conduct of Ms Curtis caused Mr Twining damage. Further, Mr Twining has not challenged this finding of fact in his appeal.
In the circumstances, I am satisfied that Ms Curtis did not cause the impecuniosity of Mr Twining. Even were it able to be said that, in some way, her conduct contributed to Mr Twining’s impecuniosity, that is not sufficient. It must be, at the very least, a material contributor to the appellant’s impecuniosity: Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operators) Pty Ltd (1982) 7 ACLR 556 at 558 per Smithers J; Haskins Contractors Pty Ltd (in liquidation) v Sydney Airport Corporation Ltd [2002] NSWSC 267 at [52]. I cannot be satisfied of this.
The application – prospects of success
Despite the difficulty of assessing the prospects of success of an appeal which is required on various occasions, such as when considering an extension of time within which to appeal (R v Meyboom (2012) 256 FLR 450 at 461; [65]-[68], or leave to appeal from an interlocutory decision (Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 51; [24]) as well as in the case of an application for security for costs, I must do so.
It can be difficult to assess the prospects of success of an appeal at an early stage in proceedings and, in some cases, it may be, as Ryan J observed in Riverside Nursing Care Pty Ltd v Minister for Aged Care at 125; [15], “invidious”. It is, however, an important and, in some cases, determinative factor. It may be somewhat easier in the case of an appeal where the court has the judgment from which the appeal is taken and the grounds of the appeal which assist.
To prove his case, in respect of any or all of the statements he says Ms Curtis made, Mr Twining had to prove on the balance of probabilities, that Ms Curtis made the relevant statement, which was made to a third person, that it was about his property and business and was false, that Ms Curtis published it maliciously and that actual damage had been suffered by him as a result of the relevant statement: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 405-7; [57]-[62], 425; [114], 447; [192].
As noted, the grounds of the appeal in the Notice of Appeal filed by Mr Twining are extensive. Some, however, seem to me to be quite irrelevant to the issue that had to be decided in the proceedings, namely whether Ms Curtis made false statements to another person about Mr Twining’s business and property and made them maliciously, which statement caused Mr Twining actual damage.
Thus, for example, whether Mr Twining had been denied procedural fairness in relation to the decisions made as to his probation or as to the termination of his employment was not relevant to these issues.
There were a number of facts also challenged which did not go to the issues as I have defined them. They were part of the narrative and, no doubt, canvassed in the proceedings, but for the most part irrelevant to the questions to be decided. For example, Master Mossop found that a private conversation between Mr Twining and a work colleague was conveyed to Ms Curtis or to another senior officer of the Commission by that work colleague. Mr Twining challenges that finding. The fact is that the conversation was brought to the attention of Ms Curtis must be accepted on Mr Twining’s own case, for it was the basis of one of the statements that Mr Twining says was the subject of an injurious falsehood. Who told Ms Curtis of the conversation was strictly irrelevant to the issues in the proceedings. Indeed, his Honour made that clear by adding “[o]ne way or the other [Ms Curtis] became aware of the issue and raised it informally with [Mr Twining’s supervisor]” making it clear that the source of the information was not critical. That finding must be correct.
Accordingly, I do not need to consider in any detail a number of the grounds of the appeal which, even if upheld, would not justify the decision of Master Mossop being overturned on the appeal.
It is clear that Mr Twining is significantly disaffected with the circumstances of the dealings he had with a number of people at the Commission and the termination of his employment there. Such disaffection had found its way into the Notice of Appeal by way of some grounds which, however, have no relevance to the ultimate issues which I have summarised above (at [36]).
The issues that need to be addressed relate to the three statements referred to by Master Mossop (in Twining (No 5) at [3]) and which were the statements pleaded by Mr Twining as constituting the injurious falsehood. A steady focus must be kept on these and whether they were said to another person, were false and said maliciously and whether they caused Mr Twining damage.
(a) The first statement
The first statement was in two parts. The first part alleged that Ms Curtis said on 16 June 2004 of the work colleague referred to above (at [39]) that the colleague “could have appealed” against the decision not to appoint her to the position to which Mr Twining was appointed and that, when Mr Twining commented to the work colleague about the way he was employed, he “commented inappropriately”.
Mr Twining did not say he was present when the remarks were said to have been made, so the only direct evidence of any statement is from Ms Curtis who is alleged to have made the remark and Mr Twining’s supervisor to whom the statements were said to have been made.
I could find no evidence that would sustain a finding that Ms Curtis told Mr Twining’s supervisor that Mr Twining had “commented inappropriately”. The learned Master found that the only reference to “commented inappropriately” was in the Probation Report of Mr Twining’s supervisor of 15 September 2004, where, in reference to the incident with the work colleague, his supervisor said
In early June, just after taking up the role, he commented inappropriately to an APSC staff member about his appointment.
It was not suggested in the cross-examination of either Ms Curtis or Mr Twining’s supervisor that this comment had come from Ms Curtis.
As a result, the learned Master found that the reference to “commented inappropriately” came from Mr Twining’s supervisor and not from Ms Curtis. This was, on the evidence, a conclusion clearly open.
No evidence of Ms Curtis making such a statement was referred to in Mr Twining’s submissions to me. In those circumstances, the appeal against the learned Master’s decision as to this statement has no prospects of success.
As to the second part of this alleged statement, that Ms Curtis said that the work colleague “could have appealed”, Ms Curtis did seem to acknowledge she may have made some reference to an appeal when speaking to Mr Twining’s supervisor. Indeed, Mr Twining’s supervisor did not recall the details of the conversation but did not seem to dispute that such a phrase may have been used.
Mr Twining responded to the Probation Report referred to above (at [45]) and, in his response, said that his supervisor
has told me that [the work colleague] “could have appealed” my appointment as if this is something to be deplored instead of the right of a concerned employee.
The learned Master found that there was no direct evidence of what was said. A perusal of the witness statements and the transcript confirms that. Mr Twining, in his submissions, pointed to no evidence that supported any conclusion different from that of the learned Master, which was (in Twining (No 5)) at [56]) that, in an informal conversation
it is likely that [Ms Curtis] said to [Mr Twining’s supervisor] that if there was a failure to comply with proper process in relation to the recruitment of the plaintiff then that had the potential to lead to an appeal.
The learned Master was not satisfied that this statement was false. His Honour considered a range of options which could properly, if, in some cases, colloquially, be referred to as an appeal and which would have been open to the work colleague. Indeed, one is the very avenue used by Mr Twining in the Federal Magistrates Court and then in the Federal Court, where Madgwick J commented (in Twining v Public Service Commission at [9]) that the Administrative Decisions (Judicial Review) Act 1977 (Cth) could, surprisingly, be used in an employment context.
Mr Twining did not make any submission as to why he says that the learned Master erred in making the finding that there were various ways in which the decision relating to the non-appointment of his work colleague may have been the subject of an appeal. I am satisfied that the learned Master was correct in his finding. Further, even were the statements to have been made in the terms alleged by Mr Twining, and not as found by the learned Master, it was still not false.
(b) The second statement
The second statement alleged by Mr Twining was a further statement, on this occasion said to have been made on 20 September 2004, that the work colleague of Mr Twining “could have appealed”.
In his witness statement, Mr Twining did not state that this comment was made, nor did he refer to it in his oral evidence.
Nevertheless, Ms Curtis did, in her witness statement, concede that, although she had no recall of making the statement, she could have done so, but in a qualified form, namely that “if the correct recruitment processes had not been followed” the engagement could have been appealed.
Similarly, Mr Twining’s supervisor conceded that it was possible that Ms Curtis made the alleged statement, but she could not recall the circumstances around the comment or conversation.
So far as I could see, neither of these witnesses gave any oral evidence that Ms Curtis had actually made the statement.
In these circumstances, it was open to the learned Master to find as he did (in Twining (No 5) at [33]) that
[t]he evidence does not establish and, indeed, [Mr Twining] did not give evidence that, at the meeting on 20 September 2004 [Ms Curtis] said that [Mr Twining’s work colleague] could have appealed [Mr Twining’s] engagement as alleged in para 20 of the statement of claim.
Mr Twining pointed to no evidence that would render that finding in error or unable to be supported.
In any event, for the reasons I have already mentioned (at [52]-[53]), the statement, if made, was not false.
(c) The third statement
The third statement that Mr Twining alleged that Ms Curtis had made was said to be made on 20 October 2004 when she is said to have stated that Mr Twining “has a track record for writing complaints without actually bringing the concern to the attention of the other party”.
The statement was, in fact, made on that day but by Mr Twining’s subsequent supervising officer (his subsequent supervisor) and not by Ms Curtis.
The genesis of this appears to be a complaint that Mr Twining made by e-mail to Ms Curtis in which he asked her to “advise” his supervisor that her habit of calling him “good boy ... unsettles [him]”. Ms Curtis did speak to his supervisor and then advised Mr Twining that she “is now aware of your concerns about this level of informality and how it makes you feel”.
Mr Twining’s subsequent supervisor, at a meeting that Ms Curtis did not attend, recounted in a record of the meeting what he explained to him as follows:
[Mr Twining] could have said to [his supervisor] at the time of the comment that he did not like the term “Good Boy”. Instead, he chose to escalate the matter to [Ms Curtis] ...
The record of the meeting then ended with “Observation” by Mr Twining’s subsequent supervisor, which included the relevant statement, but the document was that of his subsequent supervisor, not of Ms Curtis, who had not attended the meeting.
Further, his subsequent supervisor, in his witness statement for these proceedings, said that he had no recollection of Ms Curtis saying those words to him, nor of Mr Twining’s supervisor saying them to him. In his oral evidence, he described the statement as his “personal observation through the interactions that I’ve had”. He identified that there were a number of occasions where this had occurred. It was not suggested to him in cross-examination that Ms Curtis had said it to him.
Ms Curtis also stated in her oral evidence that she had no recollection of making such a statement to anyone.
The learned Master found (in Twining (No 5) at [63]) that both Ms Curtis and Mr Twining’s subsequent supervisor were witnesses whose evidence he could accept. There was no challenge to that finding in the Notice of Appeal.
The learned Master further found (in Twining (No 5) at [43]) that Ms Curtis did not make the statement. That finding was clearly open to the learned Master; indeed, it appears on the evidence to be the only conclusion that could properly have been drawn.
Conclusion
Since the proceedings were based on these three statements only as constituting the injurious falsehood, it seems to me that the appeal has little, if any, prospects of being successful.
Further evidence
Mr Twining seeks in the Notice of Appeal to adduce further evidence. I should briefly address this to assess whether any such evidence changes my assessment of the prospects of success of the appeal.
The first matter is an affidavit of 9 September 2005. Given that it was in existence at the time of the hearing, it is difficult to see why it should be admitted on the appeal. Further, it is Mr Twining’s own affidavit and, as such, it is difficult to see why he could not have given the evidence in it at the hearing when he gave his oral evidence. It seems to me that it is very unlikely to be admitted on the appeal. See Shedden v Patrick [1861-73] All ER 724 at 731.
In any event, it goes to the question of whether Ms Curtis said that Mr Twining’s work colleague “could have appealed”. Since I have found that the learned Master was right to find that such a statement, if made, was not false, it cannot strengthen Mr Twining’s appeal.
The second is another affidavit, again made by Mr Twining and again made prior to the hearing. Again, it seems very unlikely that it would be admitted. In any event, it relates to a statement made by Mr Twining’s subsequent supervisor which is not alleged to have been made by Ms Curtis and is thus not relevant to any issue on the appeal save, presumably, to the credibility of Mr Twining’s subsequent supervisor. As I understand it, it annexes a statement of a female former employee of the Commission who, Mr Twining’s subsequent supervisor said, had told him that she was in fear of Mr Twining. In the statement attached to Mr Twining’s affidavit the person says she never made such a statement. This issue is entirely collateral to the issues at the trial.
In fact, the contents of the statement were actually read out and were put in cross-examination to Mr Twining’s subsequent supervisor who, having heard it and read it, said he “absolutely” stood by his earlier statement. Further, Mr Twining said at the trial that he was not going to call the witness.
It seems to me that it is extremely unlikely that the affidavit would be admitted in the appeal, in large part because its relevance would be quite marginal if not irrelevant as the issue was only very indirectly related, if at all, to any issue at the trial.
The final matter was a transcript of a directions hearing. I have read the transcript. It can, under no stretch of the imagination, show or go any way to prove, as alleged, that certain named lawyers acting for Ms Curtis deceived a witness with the intention of giving false and misleading evidence. The transcript simply records an assertion by Mr Twining that a paragraph in the statement of the witness “should not be in the statement”. I can see no basis on which that transcript would be admitted in the appeal and is irrelevant to any issue properly to be considered in the appeal.
Other grounds of appeal
Finally, Mr Twining referred expressly to a number of his grounds of appeal. I need to deal with them briefly.
There is no doubt that Mr Twining was aggrieved about a number of aspects of his employment circumstances at the Commission and the persons there, including his superiors. He raised these as complaints in various ways but, for the most part, they were irrelevant to the issues at the trial which I have described earlier (at [36]). These matters were prominent in the grounds of appeal to which he expressly referred.
The first ground Mr Twining mentioned – and he expressly said that he “prioritises his grounds of appeal” - was ground 15 as follows:
15.His Honour erred in failing to find that the defendant recklessly disclosed the appellant’s ‘whistle blower’ complaint against [his supervisor] to [his subsequent supervisor], and falsely told him that it was relevant to his role as the appellant’s line manager.
Unlike most of the other grounds of appeal, there is no cross-reference to any paragraphs in his Honour’s reasons for judgment. That may be because it was not an issue about which the learned Master made a finding. I have to say that, on the pleadings, it was not an issue about which his Honour had to make a finding.
It appears that this matter refers to the request Mr Twining made on 7 October 2004 for an investigation into potential breaches of the Australian Public Service Code of Conduct.
Mr Twining submitted the following
Because harm to the appellant was clearly foreseeable and arguably, inevitable, the respondent’s disclosure of the appellant’s whistle blower report to [his subsequent superior] was, at the very least, reckless. And the appellant maintains that it was intentional.
It appears that Mr Twining did plead the making of this alleged conversation in his Further Amended Statement of Claim but did not plead that it caused Mr Twining any damage. As such it was not a matter with which the learned Master had to be concerned.
The allegation was that Mr Twining complained to Ms Curtis that his supervisor had referred to him with the expression “good boy”. It does not seem to me to constitute a “whistle blower” complaint as that term is usually understood, namely, “a person, usually an employee or member of an organisation, who alerts the public to some scandalous practice or evidence of corruption of that organisation” (Macquarie Dictionary).
Mr Twining did not articulate the nature of the statement that he claimed was actionable. What he said in his witness statement was that he sent an e-mail “expressing concern” that his supervisor was “persisting” in referring to him as a “good boy” and that Ms Curtis told Mr Twining that she had discussed the matter with his subsequent supervisor. He said that he was “abused” by his subsequent supervisor for raising his concerns with Ms Curtis. There is, in this, no issue of falsity or malice, thus removing the claim from the pleaded cause of action of injurious falsehood.
It seems that Mr Twining’s complaint as outlined in his submissions, though not in his pleading, was that Ms Curtis had breached some duty of confidentiality. That, however, was never an issue that the learned Master was required to resolve on the pleaded case.
The appeal ground enjoys no prospects of success.
The next ground is appeal ground 21 as follows:
21.His Honour erred in failing to find that, in disclosing the appellant’s ‘whistle blower’ report to [Mr Twining’s subsequent supervisor] or allowing it to be disclosed to him, the respondent said or implied, among other things, that the appellant had ‘a track record for writing complaints without actually bringing the concern to the attention of the other party’.
This has been dealt with above (at [62]-[70]. There does not appear to me to be any substance in this ground of appeal.
The next ground to which Mr Twining drew my attention in his submissions was appeal ground 4 as follows:
4.His Honour erred in failing to find that the person who took and/or prepared [a senior Commission officer’s] witness statement tampered with it, thereby causing [that officer] to falsely swear it.
The issue was that a paragraph in the witness statement of the senior officer was, save for one word, identical with a paragraph in the witness statement of Mr Twining’s supervisor and, as acknowledged by the senior officer, not consistent with the statement of claim. The senior officer did not, however, accept that, apart from that, it was not true.
Mr Twining, in his submissions, appears to acknowledge that there was not an issue in this matter that was necessary to be addressed for resolution of his claim against Ms Curtis. There is no allegation that Ms Curtis was personally or directly or indirectly involved in this matter.
A civil proceeding is not the occasion for a wide-ranging review of the conduct of lawyers or participants in the proceedings. Should matters of significance become obvious, a judicial officer might care to consider whether action should be taken, such as reference to the Attorney-General, the Director of Public Prosecutions or one of the legal professional associations for investigation and, if appropriate, action, of course, a party may itself make such a reference.
It would often be unfair to the parties in proceedings to digress from the pleaded action to conduct an inquiry, which may be expensive and time consuming, into alleged misconduct. In this case, it would have possibly required the relevant lawyers to be interrogated and they may need to be separately represented by their own lawyers. That would not be in the interests of the parties.
The witness statements were not sworn or affirmed and so the issue of perjury (s 703 of the Criminal Code 2002 (ACT)) does not arise.
I note that Mr Twining, when given the chance, did not object to the paragraph in the witness statement. In those circumstances, especially as he knew about the issue as early as 22 February 2013, it is not clear how he can suggest that the Court may have been subject to some impropriety when he had the means to protect the Court from that and did not do so. I cannot tell whether he deliberately chose not to assert an objection in this way for a forensic advantage or whether it was inadvertent or otherwise.
There is nothing in the reasons of the learned Master, Twining (No 5), to suggest that his Honour’s findings were affected or influenced in any way by the inclusion of the claimed offending paragraph.
Mr Twining submits that the purpose of including the paragraph was “to persuade the court that [the senior officer] was aware of the full circumstances of the appellant’s employment with the Commission, when he certainly was not”. I do not consider that this is a rational inference available and, even were it so, it is entirely irrelevant to the issues in the proceedings.
There are a number of other problems with that submission which I do not need to address in detail. Suffice it to say that none of this was put to the witness so he could comment. Thus, there was no evidence to support Mr Twining’s submissions.
Given the nature of the statement, it is difficult to see how it could have confused the learned Master or played a significant, or, indeed, any role in the decision-making process. A careful inspection of his Honour’s reasons confirms that.
Whether it is a matter for the lawyers, their employer or their professional body is entirely another matter on which I could not and should not comment. Whether it was, as Mr Crowe submitted, a simple error seems entirely possible, though I could not make a finding. So far as a ground of appeal justifying the setting aside of the decision of the learned Master, it has no relevance. This ground, even if made out, could not affect the outcome of the appeal.
Mr Twining then referred to appeal ground 8 as follows:
8.His Honour erred in finding that the favourable reports of [two officers of the Commission] covered only the period from 5 to 14 October 2004 when, in fact, those reports covered the period from 5 to 21 October 2004 (Reasons paragraph 45).
This ground is somewhat difficult to evaluate because of the actual evidence. The relevant part of the paragraph of Twining (No 5) relating to this issue is as follows:
Further, reports were prepared by the plaintiff’s immediate supervisors for the periods 14 to 21 October and 22 to 28 October which were much less favourable than those for the period 5 to 14 October. The reports indicated that the authors were concerned about reporting at all if their reports were to be made available to [Mr Twining].
The documents are as follows:
· Report on Mr Twining for period 5 to 14 October by Mr Twining’s subsequent supervisor and one of his immediate supervisors which was positive in its assessment of him.
· Report on Mr Twining for period 14 to 21 October by the same immediate supervisor which was also positive but with a slight qualification.
· Report on Mr Twining for period 5 to 21 October by the other immediate supervisor with a positive assessment of him.
· Report by Mr Twining’s subsequent supervisor dated 21 October 2004 which records negative comments about Mr Twining from both of his immediate supervisors.
· Report by one of Mr Twining’s immediate supervisors for the period 14 to 21 October which is negative and which was expressly marked as not to be discussed with Mr Twining on a face-to-face situation.
· Report by the immediate supervisor dated 28 October 2004 which was also marked “not to be discussed face to face” and which was also negative.
While it appears that the third dates mentioned by the learned Master could be said to be wrong, namely that the earlier reports did appear to cover the period 5 to 21 October and were positive, at the same time a report of the period 14 to 21 October was quite negative. Other later reports were also negative.
Nothing appeared to turn on the precise and actual dates of the reports in the learned Master’s reasons. They have, also, no real bearing on the real issues in the case, namely whether certain statements were made to other persons by Ms Curtis, whether they were false and made maliciously and whether they caused damage. See above (at [36]).
I cannot see any substance in this ground of appeal that could affect the outcome of the appeal.
Mr Twining next referred to appeal ground 13 as follows:
13.His Honour erred in finding that [his work colleagues] mentioned her conversation with the appellant ‘either directly to the defendant or to [another senior officer]’. (Reasons paragraph 19)
I have effectively dealt with this above (at [39]).
In any event, the work colleague in her written statement actually stated that she mentioned the conversation she had had with Mr Twining to the other senior officer, making the finding of the learned Master quite consistent with the evidence.
While she positively denied that she spoke to Ms Curtis about the conversation the finding of the Master cannot be said to be wrong, in the light of her evidence, as the conversation to the senior officer is referred to expressly in the evidence.
Why his Honour referred to Ms Curtis in the alternative is unclear, but nothing in the decision depends on that.
There is no prospect that this appeal ground would succeed or have any effect on the ultimate judgment.
Mr Twining next referred to appeal ground 10 as follows:
10.His Honour erred in finding that the respondent’s reasons for speaking with [Mr Twining’s supervisor] on c16 June 2004 were ‘consistent with her duties and with good management within the Commission’. (Reasons paragraph 58).
Ms Curtis was the Director of Strategic Human Resources and Communication in the Commission’s Corporate Operations Branch at the relevant time.
It is not necessary, as submitted by Mr Twining, to have a duty statement for Ms Curtis for the Court reasonably to refer that, with that title, she would have at least an interest, if not a responsibility, to ensure that recruitment processes were properly implemented.
Ms Curtis gave detailed evidence about what she did, in relation to this matter, which necessarily implied her responsibility for the issue, and it was never suggested to her that she was acting inconsistently with or outside her duties.
Having heard all the evidence, the learned Master was well able to be satisfied that what Ms Curtis was doing was appropriate for the good management of the Commission considering what he had heard from a number of relatively senior officers in the Commission.
This ground of appeal cannot succeed. In any event, it could not affect the outcome of the proceedings.
Mr Twining then referred to appeal ground 11 as follows:
11.His Honour erred in finding that the respondent did not tell [Mr Twining’s supervisor] on 20 September 2004 that [his work colleague] could have appealed the appellant’s engagement. (Reasons paragraph 53)
I have dealt with this issue above at [54]-[61].
The finding was open to the learned Master and I do not consider this appeal ground has any prospects of success.
Mr Twining referred finally to appeal ground 6 as follows:
6.His Honour erred in striking out paragraphs 34 to 41 of the appellant’s witness statement.
The stated paragraphs set out that Ms Curtis made a proposal to the Commission to reactivate the then suspended Graduate Recruitment Program to which it agreed. They then addressed the evidence that was put before the Federal Magistrates Court and the Federal Court in opposition to the application Mr Twining made for an extension of time within which to challenge the probation and termination decisions.
This material was not relevant to the question of whether Mr Twining was, as he claimed, prevented from obtaining further employment after the termination of his employment with the Commission, because he was denied references from his subsequent supervisor and immediate supervisors.
What was put to the other courts is irrelevant to that defined and pleaded issue. Mr Twining in his submissions did not show how any of the paragraphs struck out by the learned Master were relevant to that issue.
He submitted that the evidence in those paragraphs
showed that information given by the respondent to the Commission’s Chief Financial Officer ... was used to persuade the Federal Magistrates Court that the Commission could not afford to reinstate the appellant’s employment.
That is simply not relevant to the issues pleaded by Mr Twining here and on which he chose to base his case. Further, he cannot mount a collateral attack on the decision of the Federal Magistrates Court in this way. See Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198.
Mr Twining went on to make scandalous allegations against Ms Curtis in his submissions for which there was not a trace of evidence.
Conclusion
I have addressed in some detail the case mounted by Mr Twining. If he is required to pay security and if that effectively terminates the proceedings, he is entitled to a complete and explanation as is reasonable as to why that is so.
Ordinarily it would not be necessary or, perhaps, appropriate to assess the prospects of success in such detail, though that has had to be done in other cases.
In my view, Mr Twining has not shown that his case is arguable. None of the grounds of appeal on which he has relied are arguable.
It was held in Save the Ridge Inc v Commonwealth [2005] FCA 355 at [1]-[3] that, where the prospects of success of an appeal are low and the appellant is demonstrably impecunious and unable to pay any adverse costs in the event that the appeal fails, an order for security for costs will usually be made, notwithstanding that the order may stultify the appeal. I agree that this is the appropriate approach to the matter.
In my view, an order for security for costs should be made.
Quantum of costs
Unfortunately, the evidence as to what amount should be ordered for security is not particularly satisfactory. Although it has been suggested (Ciappina v Ciappina (1983) 70 FLR 287 at 291) that an applicant could provide a skeleton bill of costs, that is not necessary. The applicant, however, bears the onus of adducing the relevant material: Remm Constructions (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180 at 185, 188.
Nevertheless, the Court has a wide discretion involving many factors, some almost imponderable: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187 at 197. Indeed, as Megarry VC said in Pearson v Naydler [1977] 3 All ER 531 at 537, the decision relies on the “feel” of the case.
Ordinarily, the amount will not be a complete indemnity to the successful party, even necessarily of the estimated party and party costs that would be payable if the application for security is successful: National Bank of New Zealand Ltd v Donald Export Trading Ltd [1980] 1 NZLR 97 at 103.
The costs are not limited to costs yet to be incurred, but may include costs already incurred as pointed out in Brocklebank & Co v King’s Lynn Steam Ship Co (1878) 3 CPD 365.
An affidavit was filed by a solicitor in the employ of the lawyers for Ms Curtis. He estimated the costs of the appeal as exceeding $25,000. Regrettably that was all the evidence I had. I did not have details of the deponent’s experience with such proceedings and their costing, including assessments by the Registrar, on which he based his opinion of such cases as this nor details of the likely components of the costs, including, for example, the time that various steps would take.
Nevertheless, I am required to do the best I can. To this end, I note that in Davey v Herbst at [30] an experienced solicitor with a long practice in litigation, estimated the costs on appeal in that case as between $25,238 and $26,538. In Wagdy Hanna and Associates Pty Ltd v National Library of Australia at [9], the estimate provided was between $45,000 and $65,000 and the court there ordered security in the sum of $55,000.
As I have noted, Mr Twining has pleaded twenty-one grounds of appeal. That will inevitably increase the complexity of the conduct of the appeal, requiring longer and more complex submissions to address the issues which often an unrepresented litigant will not address in an efficient fashion and which then require the other party to address the court more comprehensively for its assistance.
In all the circumstances, I am satisfied that security in the sum of $25,000 would be reasonable in this case.
I will, accordingly, make appropriate orders.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 17 June 2014
Counsel for the Appellant: Self-represented
Solicitor for the Appellant: Self-represented
Counsel for the Respondent: Mr R Crowe SC
Solicitor for the Respondent: Australian Government Solicitor
Date of hearing: 4 December 2013
Date of written submissions Appellant: 6 January 2014
Date of written submissions Respondent
in Reply: 20 January 2014
Date of judgment: 17 June 2014
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