Ford v Benness [2021] NSWSC 319

Supreme Court New South Wales

Medium Neutral Citation: Ford v Benness [2021] NSWSC 319 Hearing dates: 29 March – 31 March 2021 Date of orders: 31 March 2021 Decision date: 31 March 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: By consent I order: 1. Judgment for the defendant against the plaintiff 2. Each party to pay his or her own costs Catchwords: EVIDENCE – cross examination about evidence which accorded with statement previously made in Senate inquiry and sent to employer – whether evidence prohibited by s 16(3) Parliamentary Privileges Act 1987 (Cth) – purpose of questions asked - purpose not prohibited – s 128 Evidence Act 1995 (NSW) – whether evidence tended to prove an offence committed - certificate issued Legislation Cited: Evidence Act 1995 (NSW) s 128 Parliamentary Privileges Act 1987 (Cth) ss 7, 16.3 Cases Cited: Leyonhjelm v Hanson-Young [2021] FCAFC 22 Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83 Category: Principal judgment Parties: Fiona Ford (Plaintiff) Dr Christopher Benness (Defendant) Representation: Counsel: Mr E Romaniuk SC with Mr S Roulstone (Plaintiff) Mr M Hutchings with Ms C Coventry (Defendant) Solicitors: Martin Street Lawyers (Plaintiff) Meridian Lawyers (Defendant) Sparke Helmore Lawyers (Interested Party) File Number(s): 2018/148540

Judgment 1. In these proceedings Ms Ford sought damages for Associate Professor Benness' alleged professional negligence and breach of duty of care when he performed various surgical procedures upon her in 2015, not all of which on her case were necessary, some of which she claimed she had not consented to and some of which she claimed had been performed negligently. 2. During the course of Ms Ford's cross examination the matter settled. I will thus now make orders on which the parties agreed to bring the matter to a conclusion, having considered the matters which remained to be resolved in relation to the application of the Parliamentary Privileges Act 1987 (Cth) and whether s 128 of the Evidence Act 1995 (NSW) had been engaged. 3. After hearing the parties I was satisfied that cross examination about Ms Ford's evidence that there had been mesh hanging out of her vagina, which she had also said in an earlier speech made to the Senate, a copy of which she had provided to her employer by email, was not prohibited by s 16(3) of the Parliamentary Privileges Act. 4. That was because in issue in these proceedings was the consequences of the disputed surgery, including the resulting economic loss which Ms Ford claimed to have suffered during her employment. I was satisfied that it must be accepted that the purpose of the cross-examination was to challenge the honesty of representations Ms Ford had earlier made to her employer by email, as well as of the evidence she had given in these proceedings, about the physical consequences of the disputed surgery. 5. These are not prohibited purposes under s 16(3) of the Parliamentary Privileges Act, which provides: (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. 1. In Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83, followed in Leyonhjelm v Hanson-Young [2021] FCAFC 22, Doyle CJ observed at [75] that the "critical thing is whether the question has a purpose that is not a prohibited purpose". If it does, then the evidence should be permitted, but the Court will not allow the question, or answer given, to be turned into a prohibited purpose. 2. That possibility did not arise in this case, given the settlement which the parties have arrived at. 3. But what became apparent was that the questioning, even though not objected to initially, did give rise to the need to adhere to the requirements of s 128 of the Evidence Act. It is concerned with evidence that may tend to prove that the witness has committed an offence against or arising under an Australian law, or is liable to a civil penalty. 4. Contempt is included in the concept of an offence against a House of Parliament under s 3(3) of the Parliamentary Privileges Act. Section 7 empowers a House of the Parliament to impose a penalty of imprisonment or fine for an offence against that House, which it determines has been committed. Other provisions deal with particular offences. 5. Having received advice, Ms Ford instructed that she did take the s 128(1) objection and thus sought a certificate under s 128 in respect of the evidence which had given rise to questions under the Parliamentary Privileges Act, including about the email sent to her employer. I was satisfied that in the circumstances which had arisen, there were reasonable grounds for that objection and that Ms Ford should thus be given the s 128 certificate which she sought.