SUPREME COURT OF NORFOLK ISLAND Snell v Sanders [2000] NFSC 2 LISLE DENIS SNELL v WILLIAM WINTON SANDERS SC 3 of 1993 CORAM: BEAUMONT CJ DATE: 20 JUNE 2000 IN THE SUPREME COURT ) ) SC 3 of 1993 NORFOLK ISLAND ) BETWEEN: LISLE DENIS SNELL Plaintiff AND WILLIAM WINTON SANDERS Second Defendant DIRECTIONS CORAM: BEAUMONT CJ DATE: 20 JUNE 2000 THE COURT DIRECTS THAT: 1. Any written submission to be relied upon by the parties on the misfeasance claim be filed and served on or before 11 August 2000. 2. The matter be listed for further directions on Tuesday 22 August 2000 at 10.30 am (EST) or such other date as may be fixed with the agreement of the parties. 3. Costs of these directions reserved. IN THE SUPREME COURT ) ) SC 3 of 1993 NORFOLK ISLAND ) BETWEEN: LISLE DENIS SNELL Plaintiff AND WILLIAM WINTON SANDERS Defendant REASONS FOR DIRECTIONS CORAM: BEAUMONT CJ DATE: 20 JUNE 2000 1 The plaintiff, Lisle Denis Snell, sued the defendant, William Winton Sanders, in this Court for damages, including exemplary damages on two claims: one a claim in tort of intentional interference with a contractual relationship; the other a claim in tort of misfeasance in public office. The defendant denied both claims. (There was also a third party claim which is no longer an issue here.) For the reasons given in my reasons for judgment dated 19 April 1996, I found that the first cause of action had been established, and awarded the plaintiff damages, including exemplary damages, in the sum of $17,000. 2 With respect to the plaintiff's second (alternative) claim, in my reasons I noted the observations of the majority (Mason CJ, Dawson, Toohey and Gaudron and McHugh JJ in Northern Territory v Mengel (1995) 185 CLR 307 that "in important respects" the "precise limits" of the tort of misfeasance in public office were then still "undefined". I further noted the doubts expressed by Smith J in Farrington v Thomson & Bridgland [1959] VR 286 at 291. 3 With respect to the claim for exemplary damages, in this connection I said (at 55): "Given these uncertainties and complexities, I prefer not to express a view on this alleged cause of action in the absence of full argument on the point. As has been noted, both causes of action relied on by the plaintiff are said to have arisen from the same circumstances, and for the reasons just given, the plaintiff could not recover more damages under the second cause of action alleged." 4 Mr Sanders appealed to the Full Federal Court against my findings on both liability and damages. Mr Snell cross-appealed, contending first, that both the general and exemplary damages were inadequate, and secondly, that the claim for misfeasance should have been decided in his favour. The Full Court (Wilcox, O'Loughlin and Lindgren JJ) dismissed the appeal and allowed the cross-appeal (see Sanders v Snell (1997) 73 FCR 569). The Full Court held first, that the tort of inducement of breach of contract had not been established; secondly, that misfeasance in public office had been committed; and thirdly that the amounts of general and exemplary damages should be increased by substituting the amount of $70,000, including interest. 5 Mr Sanders appealed to the High Court of Australia from the Full Federal Court judgment by special leave granted by Toohey, Gaudron and Hayne JJ. Mr Snell then applied for special leave to cross-appeal. The High Court (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ) held that there had been no inducement of breach of contract. On the claim of misfeasance in public office, a majority of the High Court (Gleeson CJ, Gaudron, Kirby and Hayne JJ, Callinan J dissenting) allowed the appeal in part and allowed the cross-appeal in part. The relevant orders of the High Court were that the award of damages ordered by the Full Federal Court be set aside, and that there be a new trial limited to the misfeasance claim (see Sanders v Snell (1998) 196 CLR 329). The majority said (at 350): "The trial judge not having considered the allegations of misfeasance in public office, and the Full Court having erred in deciding that that cause of action was made out, the judgment entered by the Full Court cannot stand. But should this aspect of the matter go back for retrial so that findings can be made? That any matter should have to be remitted for retrial is unfortunate. The costs of prolonging any matter, let alone a matter such as this which arises from within a small community, are not just financial costs. But no findings of fact having been made on this aspect of the matter, there is no choice but to remit the matter for retrial on the claim for misfeasance in public office. Because there should be an order for retrial of the claim for misfeasance in public office, it is not appropriate to say anything about the assessments of damages made by the Full Court. Those are matters for the trial judge at the new trial. We are not, however, to be taken as endorsing in its entirety the approach adopted by the Full Court in making those assessments or in allowing, as it did, interest on amounts allowed for exemplary damages." 6 Counsel for the parties have now addressed on some adjectival aspects of the new trial ordered by the High Court. Specifically, Counsel have made a number of submissions on the scope of these proceedings. 7 In my opinion, the interests of justice require that the new trial proceed upon the basis of first, the existing pleading of that claim and secondly, the evidence already adduced before me on that claim. In my view, there is no reason why at this late stage any party should have the opportunity to amend a pleading or adduce fresh evidence. That opportunity was fully available at the trial and to permit fresh material at this stage would inevitably cause the parties considerable cost and delay. In my view, it would be unjust to allow either party to re-open years after the trial, bearing in mind that each of them fully availed himself of the opportunity to plead a claim and defence, call evidence and make submissions at a lengthy trial on the issues which, as noted, included the misfeasance claim. The fact that I was then of the view that I need not deal with such claim is beside the point. 8 However, so far as argument on the present claim is concerned, it is appropriate that Counsel have the opportunity of supplementing their earlier submissions made at the trial by addressing upon the effect of the High Court's decision. In the first instance at least, it is appropriate that this be done in written submissions. Accordingly, I will direct that any further written submissions to be relied upon by the parties on the misfeasance claim be filed and served on or before 11 August 2000. I will also direct that the matter be listed for further directions on Tuesday 22 August 2000 at 10.30 am or such other date as may be fixed with the agreement of the parties. 9 The other adjectival aspect raised in argument was a submission made on behalf of Mr Sanders that I should now disqualify myself. In all the circumstances, given especially the fact that I have at no time expressed any view whatsoever on the misfeasance claim (then finding it unnecessary to do so in the light of my opinion of the other claim) I do not propose to accede to the disqualification application. 10 I give the following directions: 1. Any written submissions to be relied upon by the parties on the misfeasance claim be filed and served on or before 11 August 2000. 2. The matter be listed for further directions on Tuesday 22 August 2000 at 10.30 am (EST) or such other date as may be fixed with the agreement of the parties. 3. Costs of these directions reserved. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Direction herein of the Honourable Chief Justice Beaumont. Associate: Dated: 20 June 2000 Counsel for the Plaintiff: Mr A Cook QC Counsel for the Defendant: Mr P Garling SC Last written submission dated: 9 June 2000 Date of Judgment: 20 June 2000