Orr v University of Tasmania [1957] HCA 32

High Court of Australia Dixon CJ, Williams and Taylor JJ. Orr v University of Tasmania [1957] HCA 32

ORDER Appeal dismissed with costs.

The judgment of the COURT was read by TAYLOR J.

May 23 Taylor J.

This is an appeal brought by Sydney Sparkes Orr from a judgment given in the Supreme Court of Tasmania by Green J. in an action in which he sued the University of Tasmania for a declaration that he is and has been at all times the Professor of Philosophy in that university and, alternatively, for damages for his wrongful dismissal from that office.

We think that there is no serious question raised by the appeal which is not wholly a question of fact. The question concern the association of the appellant with one, Suzanne Kemp, who, at the material time, was a second-year student in his philosophy class at the university. It was alleged by the defendant university that the appellant had seduced Miss Kemp and that by reason of the circumstances in which this occurred it became entitled to dismiss him summarily. This the university proceeded to do on 16th March 1956. A great deal of evidence was given in the action concerning incidents which occurred during the year 1955 and it is clear that there was abundant evidence upon which the learned trial judge was entitled to find that the substantial allegations made by the defendant university had been proved. This finding was made despite the emphatic denials of the appellant that sexual intercourse had ever taken place between him and Miss Kemp.

Criticisms of the findings made by the learned trial judge were advanced during the hearing of this appeal but we are satisfied that none of them justify the intervention of a court of appeal. The substantial criticisms which were advanced related to the use made by the trial judge of a diary which had been kept by Miss Kemp during 1955 and to the importance attached by the learned trial judge to evidence which became admissible by reason of other issues which were raised by the university and which in the ultimate result were held not to constitute cause for dismissal. The diary became admissible in evidence by reason of the provisions of s 78 of the Evidence Act 1910-1952 Tas. and it was suggested by counsel for the appellant that the provisions of sub-s (2) of the following section prevented the learned trial judge from relying upon the contents of the diary in any way as confirmation of Miss Kemp's story. It is true that sub-s (2) of s 79 provides that for the purpose of any rule of law or practice requiring evidence to be corroborated a statement rendered admissible as evidence by s 78 shall not be treated as corroboration but this was not a case in which any rule of law or practice required Miss Kemp's evidence to be corroborated. Moreover, a careful reading of his Honour's reasons makes it quite clear that he did not treat the contents of the diary as corroboration of her evidence; it was merely one of several factors upon which the judge placed some reliance in deciding, ultimately, that her evidence should be accepted.