MONIE v COMMONWEALTH of AUSTRALIA [2003] NSWSC 1141

New South Wales Supreme Court

CITATION : MONIE v COMMONWEALTH of AUSTRALIA [2003] NSWSC 1141 HEARING DATE(S) : 24/05/2002; 3-17/06/2002 JUDGMENT DATE : 4 December 2003

JUDGMENT OF : Dowd J at 1 DECISION : Verdict for the defendant; liberty to apply; costs reserved.

CATCHWORDS : Negligence - duty of care - causation - circumstances in which duty of care owed in respect of psychiatric injury - obligation of employment agency to disclose criminal record - damages. LEGISLATION CITED : Social Security Act 1991 Astley v Austrust Ltd (1999) 197 CLR 1 CASES CITED : Daniels v Anderson (1995) 37 NSWLR 438 March v V & MH Stramare Pty Ltd (1990-1991) 171 CLR 506 Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449 Peter John Monie PARTIES : Jennifer Monie Samuel Monie Commonwealth of Australia FILE NUMBER(S) : SC 20043/01 COUNSEL : D F Rofe QC with A J Tudehope (Plaintiffs) R S McIlwaine SC (Defendant) SOLICITORS : S K & Associates (Plaintiffs) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Thursday 4 December 2003

20043/01 PETER JOHN MONIE & 2 ORS v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 His HONOUR: This action was brought by the three plaintiffs against the defendant in the defendant's right as the Commonwealth Employment Service ("CES") for damages for negligence in the referral of a person by the defendant, to the plaintiffs, for employment.

Background Facts 2 Peter Monie, born 1928, married Jennifer Monie, born 1939, on 16 November 1961 from which marriage there were five children: Sally Barton, Annabel Sides, Sam Monie, Ben Monie and Michael Monie. The last named died on 3 November 1996. 3 Peter Monie and the family company, PJ Monie & Co Pty Ltd ("PJM & Co"), formed a trading partnership of a five thousand acre farming cattle stud property known as Thornleigh situated some thirty two kilometres from Bingara, Thornleigh having been in the family for many years having been well established by 1952. 4 In 1970 a partnership, which operated the farm known as "Thornleigh & Co", was entered between Peter Monie and PJM & Co to be divided as to 25% to Peter Monie and 75% to PJM & Co. The business was carried out on the property. 5 Peter Monie was issued with two A Class shares and his wife with two B Class shares. Each of the five children was allocated fifty shares with Mr and Mrs Monie as trustee for each child. On the death of Michael Monie, his shares were allocated half to each of Peter Monie and his wife. 6 As a result of amendments to the Social Security Act 1991 Peter Monie and his wife converted their shares in March 2002 into ordinary shares and they both resigned as Directors of the company. Their sons, Ben and Sam, were appointed Directors of the company and Ben was appointed Secretary. Peter Monie ceased to carry on the business of Thornleigh & Co which was then carried on by his son, Ben. For the sum of $123,700.00 each, Peter Monie and Jennifer Monie transferred their shares to Ben Monie. 7 Peter and Sam Monie decided in the late 1980s to establish a program to source breeding stock and import semen to Australia for breed enhancement to increase the cattle herd and profitability. As a result of that decision Sam Monie worked as a jackeroo in the Northern Territory for five months and after returning to Thornleigh travelled to Canada for some eight months to develop the stud venture. Sam Monie had completed his education as a boarder at a Sydney secondary college followed by twelve months jackerooing near Tamworth. 8 In February 1991, in addition to operating a commercial herd, Peter and Sam Monie commenced the marketing of cattle semen. Both participated in the day-to-day management of the property. In 1992 a live artificial insemination program was commenced at Thornleigh. The first calves of the artificial insemination program were produced in 1993. 9 On 19 November 1992 Thornleigh & Co employed a Martin Bostelaar as a farm hand for a period of twenty six weeks under the Commonwealth's "JobStart Scheme". Under this scheme there was a subsidy paid of $270.00 a week for twenty six weeks. He worked satisfactorily until he left of his own volition to take another position in February 1993. The JobStart programme was a Commonwealth scheme to assist in the employment of people who were disadvantaged in the employment market. 10 In March 1993 Sam Monie attended the Inverell CES as a result of which, a further JobStart Scheme employee, Michael Gallagher, was employed by Thornleigh & Co with a subsidy of $160.00 per week. 11 On 22 March 1993 Sam Monie sought from the CES at Inverell another employee to assist at Thornleigh as a result of which, on 24 March 1993, Darren James Winsor, was employed under the JobStart Scheme with a subsidy of $220.00 per week. 12 On 15 June 1993 Peter Monie was shot four times by Darren Winsor whilst in the home on the Thornleigh property. Peter Monie was admitted to Bingara Hospital on that day and was transferred on the same day to Tamworth Base Hospital where he was treated for bullet wounds to the right jaw, left arm, right collarbone and right wrist. 13 On 22 June 1993 Peter Monie was discharged from Tamworth Base Hospital. On that same day, Darren Winsor was arrested and charged with the attempted murder of Peter Monie. 14 In July 1993 Sam and Peter Monie attended the CES offices at Inverell and had a meeting with a woman, then Anne Morris, now Arca, being the person who had spoken to Sam Monie at the time of the employment of Darren Winsor. 15 In December 1993 the committal of Darren Winsor for the Attempted Murder took place at Inverell Local Court where Sam, Peter and Jennifer Monie gave evidence. 16 The trial of Darren Winsor was aborted on several occasions having been scheduled to commence on 20 May 1995 when it was adjourned, again in October 1995 when it was adjourned and in November 1995 when the trial was aborted. On 22 November 1995 a further trial was aborted. On each of these occasions, Peter, Sam and Jennifer Monie were required to attend to give evidence. 17 Although Winsor maintained his innocence, on 12 September 1997, Winsor was found guilty of Attempted Murder and sentenced to twelve years imprisonment with a minimum term of eight years, Winsor having been at large, although subject to strict bail conditions, pending trial. 18 From 1993 until March 1996 Sam Monie took over control and management of the family property and the operations being conducted. 19 In October 1993 Peter Monie suffered a stroke. On 21 April 1995 there was a dispersal of a significant number of the stud cattle from the Thornleigh property, a second dispersal occurring on 9 October 1995.