New South Wales Supreme Court Griffiths v Ballard [2005] NSWSC 1350 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 5 May 2005, 6 May 2005 JUDGMENT DATE : 22 December 2005 JURISDICTION : Common Law Division JUDGMENT OF : Rothman J at 1 DECISION : a Appeal allowed in part; b The orders of Associate Justice Harrison issued on 25 August 2004 be quashed and in lieu thereof the Court makes orders in the following terms; i. Leave is granted to the Plaintiff to file the Further Amended Statement of Claim attached to the affidavit of John Edmund Michael O'Connor of 26 July 2004; ii. Proceedings against the First Defendant are struck out; iii . Paragraphs 16, 29 and 44 of the Further Amended Statement of Claim are struck out as are the words "jointly and severally" and "the First and" from paragraph 50 thereof; iv. Leave is granted to file a document reflecting the above orders; c The Second Defendant shall pay one third of the costs of the plaintiff as taxed or agreed. CATCHWORDS : Summary dismissal of proceedings - Appeal from Associate Justice - Witness immunity - Immunity arguably not available to employer of witness - Misfeasance - No de facto authorisation - No invalid public duty - Witness immunity available in Trade Practices Claims - Commonwealth arguably in trade and commence in supplying analyses for fee Trade Practices Act 1974 (Cth) Supreme Court Act Supreme Court Rules LEGISLATION CITED : Poisons and Therapeutic Goods Act 1966 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW) Public Service Act 1999 (Cth) R v Piggott, Griffiths and Simeon [2002] NSWCCA 218 Mann v O'Neill (1997) 191 CLR 204 Darker v Chief Constable of West Midlands Police [2000] 3 WLR 747; [2000] UKHL 44 Cabassi v Vila (1940) 64 CLR 130 D'Orta-Ekenaike v VLA (2005) 79 ALJR 755, 214 ALR 92, [2005] HCA 12 Keefe v Marks (1999) 16 NSWLR 713 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Sullivan v Moody (2001) 207 CLR 562 Hillman v Black Northern Territory v Mengel (1995) 185 CLR 307 Sanders v Snell (1998) 196 CLR 329 Sovereign v Howarth [2003] NSWSC 1120 Electrolux v AWU (2004) 78 ALJR 1231, 209 ALR 116, [2004] HCA 40 Plimer v Roberts (1970) 80 FCR 303 Monroe Topple & Associates v Institute of Chartered Accountants (2002) 122 FCR 110 Appellant - John Henry GRIFFITHS PARTIES : First Respondent - Peter BALLARD Second Respondent - Commonwealth of Australia FILE NUMBER(S) : SC 20188/2003 Appellant: Mr E Lennon QC COUNSEL : Respondents: Mr S Gageler QC with Mr G Kennett Appellant: John M O'Connor & Company SOLICITORS : Respondents: Blake Dawson Waldron LOWER COURT JURISDICTION : Supreme Court (Associate Judge) LOWER COURT FILE NUMBER(S) : 20188/2003 LOWER COURT JUDICIAL OFFICER : Associate Justice Harrison - 26 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE ROTHMAN 22 December 2005 JOHN HENRY GRIFFITHS v PETER BALLARD & 2 ORS 20188/2003 JUDGMENT 1 HIS HONOUR: This is an appeal against the Judgment of Associate Justice Harrison of 25 August 2004 in which Her Honour made orders, the effect of which was to dismiss proceedings commenced by the Plaintiff as against the First and Second Defendants. Notwithstanding the nature of the proceedings as an Appeal, I will continue to refer to the parties as Plaintiff and Defendants respectively. 2 The Plaintiff claims damages, including exemplary damages against the First and Second Defendants, on three (3) general bases: breach of duty to exercise reasonable care; misfeasance in office; and the contravention of s.52 of the Trade Practices Act 1974 (Cth). I will deal with the nature of these claims in more detail later but they arise out of the First and Second Defendants' conduct in analysing samples and giving evidence of the alleged results. 3 By Notice of Motion, the First and Second Defendants, being Mr Ballard and, his employer, the Commonwealth of Australia, sought dismissal of the proceedings as against them or, in the alternative, the striking out of paragraphs 15 to 44 and 50 of the Amended Statement of Claim predominantly on the basis of witness immunity. Some confusion has been caused both before Associate Justice Harrison and me because of the manner in which the parties have dealt with the Further Amended Statement of Claim as if it had been filed. That was a course adopted before Her Honour which explains the form of the Orders made by her, by which the Associate Justice intended that the proceedings be dismissed. This is made abundantly clear by the terms of paragraphs [27] and [28] of the Reasons for Judgment of Associate Justice Harrison. 4 The Third Defendant, the State of New South Wales, is not affected by these proceedings and, notice of the proceedings having been given, appeared only for the purpose of advising the Court that they sought to take no part in the Notice of Motion or the Appeal therefrom. 5 These proceedings come before me by way of appeal pursuant to the terms of s.75A of the Supreme Court Act, the procedures for which are governed by the terms of Part 60, Rule 10 and following. Before me, this is not a hearing de novo and I apply the principles appropriate for a re-hearing. In that regard, while there may be a residual discretion under either Part 15, Rule 26 or Part 13, Rule 5 of the Supreme Court Rules (SCR) not to strike out, stay or dismiss the proceedings or any part thereof or any pleading, that residual discretion, if it exists, was not exercised and the Associate Justice determined to exercise jurisdiction on the basis of a determination that there was "no reasonable cause of action". I continue to deal with the matter under the Supreme Court Rules although there is no material difference to any relevant issue if the new Uniform Civil Procedures were utilised. 6 The case on Appeal was not agitated on the basis that the Associate Justice erred in not considering any such residual discretion and it is unnecessary for me to determine whether any such residual discretion exists. A proper construction of either one of the sub-rules (i.e. Part 15, Rule 26(1) and Part 13, Rule 5 of the SCR) would make clear that if there were, in the judgment, a misapplication of the principles associated with the summary dismissal, or if there were in existence a reasonable cause of action which had been struck out, the judgment would disclose an error that would be required to be corrected on Appeal. The Plaintiff has argued this matter on the basis of the existence of such an error and I am able, therefore, to deal with the matter unaffected by considerations associated with an appeal against the exercise of a discretion. BACKGROUND FACTS 7 The Plaintiff is a qualified pharmacist who has practised as a chemist for some 20 years and is involved in prepatory work in the development of pharmaceuticals for potential sale within Australia and overseas. 8 On or about 2 or 3 July 1999, the Police seized chemical substances in the possession of the Plaintiff and on 7 July 1999 arrested the Plaintiff, took him into custody and laid charges against him, including charges of being knowingly concerned in the manufacture of the prohibited drug, methcathinone. 9 After his arrest the Plaintiff remained in custody until he was released on or about 26 October 2001. After the arrest and charging of the Plaintiff, the police gave to the Australian Government Analytical Laboratories (AGAL), which conducted a unit known as the Australian Forensic Drug Laboratory, the substances seized from the Plaintiff for the purpose of testing them. The AGAL and/or the Australian Forensic Drug Laboratory is a business unit within the Analytical and Mapping Division of the Commonwealth Department of Industry, Tourism and Resources and is conducted by the Second Defendant. 10 The Second Defendant, the employer of the First Defendant, gave the substances to the First Defendant for analysis, the First Defendant being appointed as an analyst pursuant to the terms of s.37A of the Poisons and Therapeutic Goods Act 1966 (NSW). 11 The First Defendant "interacted" with analysis equipment in a way which caused the equipment to confirm the presence of methcathinone in circumstances where the readings otherwise would not have done so. More will be said of this later. 12 As a consequence of that conduct the now false readings were recorded and ultimately a certificate purportedly pursuant to the terms of s.40 of the Poisons and Therapeutic Goods Act 1966 (NSW) was provided by the First Defendant. That certificate, pursuant to the terms of s.40(2) and s.41 of the aforesaid Act and s.43 of the Drug Misuse and Trafficking Act 1988, together with oral evidence by the First Defendant and other evidence, resulted in the conviction of the Plaintiff at trial. That conviction was overturned and the Plaintiff acquitted by the Court of Criminal Appeal (R v Piggott, Griffiths and Simeon[2002] NSWCCA 218). 13 During the course of the Judgment of the Court of Criminal Appeal, His Honour Justice Barr with whom Spigelman CJ and Bergin J agreed, stated that it was not open to the Jury to be satisfied beyond a reasonable doubt that the chemical in question was, in fact, methcathinone. Justice Barr said: " [47] AGAL received its curator sample of methcathinone on 5 August 1999. On 25 August 1999 Mr Ballard did a GCMS test of each of the seven samples. … [48] Mr Ballard prepared to run GCMS tests, as he said to establish that the substance was methcathinone. Before starting them he programmed the instrument and a summary of the intended test results was printed out. It was tendered by Counsel for Mr Griffiths and became exhibit U. [55] … Then there emerged a fact which had not been mentioned (or perhaps noticed, for this is not intended to be any criticism of the Crown Prosecutor) during Mr Ballard's evidence in chief, namely that the run was recorded as having commenced at 14 hours, 17 minutes, 52 seconds on 24 August 1999. That was impossible if the preceding run with a standard sample (report exhibit X) did not begin until 14 hours, 16 minutes, 21 seconds and took about 29 minutes. " 14 At paragraph [56] Barr J included transcript of the questioning of the First Defendant in these proceedings in or to the effect that the First Defendant "had some interaction with the instrument", to use the First Defendant's words, and on being asked his reason for the interaction, the First Defendant in these proceedings said: "I can't remember specifically, but I am guessing … I had seen that the computer wasn't selecting the peak … as methcathinone. Having already determined that it was methcathinone in those samples, and confirmed it by the previous tests, I believed I changed the window, opened the window a little to include it." 15 The Court of Criminal Appeal (and the Trial Judge on sentencing), it is alleged, took the view that the First Defendant had altered the testing method, deliberately, for the purpose of producing a result different from the true result of the test which true result would have been inconsistent with the substance being methcathinone. 16 In the proceedings currently before the Court the Plaintiff seeks damages from each of the Defendants for the damage caused by the course of conduct described above. The First and Second Defendants rely upon the immunity of witnesses to show that no reasonable cause of action is disclosed. That argument of the First and Second Defendants was upheld by the Associate Justice and the Plaintiff appeals that Judgment. 17 The First and Second Defendants have filed a Notice of Contention which, if they were to be unsuccessful in defending the basis of the Judgment below, they say would otherwise require a dismissal of the Appeal. That Notice of Contention relies on the grounds that neither of the Defendants owed a duty of care to the Appellant; that no case is established of any invalid act to ground a claim of misfeasance in public office; and that the conduct alleged to be false or misleading within the meaning of s.52 of the Trade Practices Act 1974 (C'th) did not take place "in trade or commerce". 18 The Notice of Motion before the Associate Justice proceeded on the basis of the pleadings and certain formal affidavits annexed to which were the Judgments of the Court of Criminal Appeal and the proposed Further Amended Statement of Claim, which later document was treated by all parties as the latest exposition of the case of the Plaintiff, upon which the Court ought to determine whether the grounds, upon which the Notice of Motion progressed, were made out. 19 While the terms of each of the sub-rules pursuant to which the Notice of Motion seeks the Court to make orders utilise the term "may", the sub-rules leave little or no room for a residual discretion to refuse orders. The determination as to whether or not, for example, a "reasonable cause of action" exists is not in itself an exercise of discretion and the proposition that, having found there was no such reasonable cause of action, the Court would exercise a residual discretion to allow proceedings to continue, while not needing to be decided in these proceedings, is difficult to imagine. FURTHER AMENDED STATEMENT OF CLAIM 20 As earlier stated, there are three bases upon which the plaintiff claims against the First and Second Defendants. Duty of care 21 After reciting the allegations of fact the Plaintiff, Mr Griffiths, alleges the First Defendant, Mr Ballard, breached a duty to exercise reasonable in the following terms: "[16] At all material times- a. Ballard knew or ought reasonably to have known that the information he provided to the Police or the DPP would be relied on by the DPP in determining whether or not to prosecute, or continue to prosecute, the proceedings against the Plaintiff; b. Ballard knew or ought reasonably to have known that the DPP relied on him to exercise reasonable care- i. In the conduct of his analyses of, and so as to identify, the substance; and ii. To fully and accurately advise the Police or the DPP of the method and results of those analyses. c. The DPP did rely on- i. Ballard in the conduct of his analyses of, and so as to identify, the substance; ii. Ballard to fully and accurately advise the Police or the DPP of the method and results of those analyses; iii. The information provided by Ballard in determining whether or not to prosecute, or continue to prosecute, the proceedings against the Plaintiff. d. Ballard knew or ought reasonably to have known that if he did not exercise that reasonable care- i. The DPP may determine to prosecute, or continue to prosecute, the proceedings against the plaintiff when otherwise that would not have occurred; ii. The Plaintiff would suffer loss and damage, namely- (1) that the DPP may determine to prosecute, or continue to prosecute, the proceedings against the Plaintiff when otherwise that would not have occurred; (2) that he might be remanded in custody pending the prosecution of the proceedings until their completion; (3) that he might be sentenced and held in custody upon conviction pending appeal; (4) that he might incur costs in defending the proceedings; (5) that he might suffer loss of income and other damage; e. The Plaintiff was vulnerable to- i. the conduct by Ballard of his analyses of, and so as to identify, the substance; and ii. The reporting, by Ballard to the police or the DPP of the method and results of those analyses; Particulars The Plaintiff's vulnerability arose by reason of- (1) the analyses being conducted by Ballard without any involvement of or supervision by the plaintiff or his representative; (2) the reporting being carried out by Ballard without any involvement of or supervision by the plaintiff or his representative; (3) the reliance alleged in sub-paragraphs (a) and (b) hereof; (4) the risk of loss alleged in sub-paragraph (d) hereof; (5) the provisions of section 40 of the Poisons and Therapeutic Goods Act 1966; (6) the facts alleged in paragraphs 8 and 15 hereof. f. Ballard knew or ought reasonably to have known that the Plaintiff was vulnerable to him in the respects identified in the preceding sub-paragraph; g. In the premises Ballard owed the plaintiff a duty to exercise reasonable care- i. In the conduct of his analyses of, and so as to identify, the substance; and ii. To fully and accurately advise the police or the DPP of the method and results of those analyses." 22 The breache of the duty of care alleged above are in relation to evidence given in the criminal proceedings against Mr Griffiths and preparatory work relating thereto and is set out in paragraphs 18 to 29 of the Further Amended Statement of Claim. 23 As against the Second Defendant, the Commonwealth, the allegation on duty of care is that the Commonwealth breached a duty to exercise reasonable care in the following terms: "[17] At all material times- a. AGAL knew or ought reasonably to have known that the information it provided to the police or the DPP would be relied on by the DPP in determining whether or not to prosecute, or continue to prosecute, the proceedings against the Plaintiff; b. AGAL knew or ought reasonably to have known that the DPP relied on it to exercise reasonable care- i. In the conduct of analyses of, and so as to identify, the substance; and ii. To fully and accurately advise the Police or the DPP of the method and results of those analyses. c. The DPP did rely on- i. AGAL in the conduct of analyses of, and so as to identify, the substance; ii. AGAL to fully and accurately advise the Police or the DPP of the method and results of those analyses; iii. The information provided by AGAL in determining whether or not to prosecute, or continue to prosecute, the proceedings against the Plaintiff. d. AGAL knew or ought reasonably to have known that if it did not exercise that reasonable care- i. The DPP may determine to prosecute, or continue to prosecute, the proceedings against the plaintiff when otherwise that would not have occurred; ii. The Plaintiff would suffer loss and damage, namely- (1) that the DPP may determine to prosecute, or continue to prosecute, the proceedings against the Plaintiff when otherwise that would not have occurred; (2) that he might be remanded in custody pending the prosecution of the proceedings until their completion; (3) that he might be sentenced and held in custody upon conviction pending appeal; (4) that he might incur costs in defending the proceedings; (5) that he might suffer loss of income and other damage; e. The Plaintiff was vulnerable to- i. the conduct by AGAL of analyses of, and so as to identify, the substance; and ii. The reporting, by AGAL to the police or the DPP of the method and results of those analyses; Particulars The Plaintiff's vulnerability arose by reason of- (1) the analyses being conducted by AGAL without any involvement of or supervision by the plaintiff or his representative; (2) the reporting being carried out by AGAL without any involvement of or supervision by the plaintiff or his representative; (3) the reliance alleged in sub-paragraphs (a) and (b) hereof; (4) the risk of loss alleged in sub-paragraph (d) hereof; (5) the provisions of section 40 of the Poisons and Therapeutic Goods Act 1966; (6) the facts alleged in paragraphs 8 and 15 hereof. f. AGAL knew or ought reasonably to have known that the Plaintiff was vulnerable to it in the respects identified in the preceding sub-paragraph; g. In the premises AGAL owed the plaintiff a duty to exercise reasonable care- i. In the conduct of his analyses of, and so as to identify, the substance; and ii. To fully and accurately advise the police or the DPP of the method and results of those analyses." 24 The breaches of duty by the Commonwealth are set out in paragraphs 30 to 36 of the Further Amended Statement of Claim and rely upon the conduct of Mr Ballard in the testing of the substance as conduct of the Commonwealth but plead the breach of duty (and the duty) in terms that do not expressly rely upon the conduct of Mr Ballard, by such name, and may go beyond that conduct to acts or omissions of more general character. 25 Associate Justice Harrison dismissed the breach of duty claims against both Mr Ballard and the Commonwealth on the basis of witness immunity. Trade Practices Claim 26 Mr Griffiths alleges (paragraph 40 of the Further Amended Statement of Claim) that the Commonwealth in conducting the AGAL is carrying on a business of providing the services and supplied services to the NSW Police. It is alleged, therefore, that the Commonwealth in its conduct of the AGAL, is covered by the provisions of the Trade Practices Act 1974 (Commonwealth) and that the Commonwealth is liable for the breach of s.52 of the Trade Practices Act said to have been committed by virtue of the conduct described. Because of his involvement in the conduct, Mr Ballard, too, is said to be liable for the breach of s.52 of the Trade Practices Act. 27 Her Honour Associate Justice Harrison held that the witness immunity extended to the alleged s.52 claim and dismissed this aspect of the claim against both the Commonwealth and Mr Ballard on that basis. Misfeasance in Public Office 28 Mr Ballard was given authority to analyse and certify the result of such analysis under the terms of sections 37A and 37B of the Poisons and Therapeutic Good Act 1996 (NSW) and section 43 of the Drugs Misuse and Trafficking Act 1985 (NSW). It is pleaded that the authority given by these sections is a power limited to certifying the nature of substances as actually revealed by the testing. It is the duties under the Poisons and Therapeutic Goods Act and the Drugs Misuse and Trafficking Act which are relied upon by the plaintiff. 29 The sections relied upon are, relevantly, in the following terms: Poisons and Therapeutic Goods Act 1966 Section 37A: Appointment of analysts "(1) The Minister may appoint particular persons or a class of persons to be analysts for the purposes of this Act. … (4) Persons may be appointed as analysts whether or not they are employed under Part 2 of the Public Sector Management Act 1988. Section 37B: Conduct of analyses "(1) An inspector may submit for analysis under this section any substance or goods seized under this Act. (2) An analyst is required to carry out or personally supervise the carrying out of an analysis of a substance or goods submitted to the analyst for analysis. (3) An analyst who has carried out or personally supervised the carrying out of an analysis of any such substance or goods may, and must on request, issue a certificate of analysis setting out the results of the analysis." Drug Misuse and Trafficking Act 1988 Section 43: Certificate Evidence "(1) Any analyst analysing any plant or substance submitted to the analyst or under whose supervision the analysis of any plant or substance submitted to the analyst is carried out may give a certificate of the result of the analysis. (2) In any legal proceedings under this Act, the production of a certificate, purporting to be signed by the analyst, shall be prima facie evidence of the identity of the plant or substance analysed, the quantity or mass of the plant or substance analysed and of the result of the analysis, without proof of the signature, employment or appointment of the person appearing to have signed the certificate. (3) Any appointed person analysing any plant submitted to the person may give a certificate of the result of the analysis. … (6) In this section: analyst means: (a) any person employed by the government of New South Wales, or by an area health service, as an analyst, and (b) any person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1996 . Appointed person means a person appointed under subsection (5). Plant includes any part of a plant, and the achene and seed of a plant. 30 From the above it is clear that the authority to analyse a substance and issue a certificate, granted by State Act, is an authority that may be granted to a person other than a public servant, State or Federal. The "public duty" under which Mr Ballard performed his role was, if any, a duty under the Public Service Act 1999 (Commonwealth). It may have been a duty as an employee only, the public duties under the Commonwealth Public Services Act being predominantly concerned with employer functions on behalf of the Commonwealth. WITNESS IMMUNITY 31 The plaintiff's argument, both at first instance and on appeal, is essentially that witness immunity does not extend to the investigative process when tainted by malice or "falsity in the conduct". Senior Counsel relies on Mann v O'Neill (1997) 191 CLR 204 and Darker v Chief Constable of West Midlands Police [2000] 3 WLR 747; [2000] UKHL 44. 32 In so doing the seminal cases on witness immunity, Cabassi v Vila (1940) 64 CLR 130 and D'Orta-Ekenaike v VLA (2005) 79 ALJR 755, 214 ALR 92, [2005] HCA 12, are sought to be distinguished, largely on the basis that, in the current proceedings, there is no attempt (or need) to impugn a decision or judgment of any court. Indeed, it is argued, the incorrect judgment, induced by the wrongful acts of the first and second defendants, has been overturned on appeal and the plaintiff relies on the judgment on appeal and the reasons therein. 33 The first and second defendants, respondents on the appeal, maintain the stance taken at first instance and support the reasons for judgment of her Honour below. Relying on both Cabassi and D'Orta, the defendants submit that witness immunity extends to the evidence that is given by a witness and statements made by a prospective witness in contemplation of proceedings. Therefore, it is said, the evidence and the preparation of the certificate for the Police are both immune. Further, the witness immunity applies both to common law and statutory remedies. 34 The rationale underpinning witness immunity is the same as that which grants immunity to jurors, judges and advocates. It was recently thoroughly discussed by the High Court in D'Orta. Because of the challenge to its applicability in this case, it is appropriate that some, at least, of that public policy be repeated. In the joint judgment (Gleeson CJ, Gummow, Hayne and Heydon JJ), the High Court said: "[31] In Giannarelli, Mason CJ said that "the barrister's immunity, if it is to be sustained, must rest on considerations of public policy". His Honour explained that the term "immunity" was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and "the injury to the public interest that would arise in the absence of immunity". Of the various factors advanced to justify the immunity, "the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings" (emphasis added) was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation. [32] To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the "judicial branch of government" is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed. … [34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding [35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe. "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". … [37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected. … [39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation. "The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them." (footnote omitted) [40] The development of judicial immunity was more complex. It was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments. … [42] In R v Skinner, Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government." 35 The submission that correction of the impugned decision on appeal overcomes the basis for the immunity is not convincing. Even though, or especially because, the decision has been corrected, the result is the lawful judgment, by definition. To reopen the material leading to the original flawed judgment (when the material was before the court in any event) on the basis that damage was caused as a result of the evidence (or the preparation of it) raises the spectre of a re-litigation of the original trial, with the same or different material. It may well be that were the evidence not to have been given in the form that it was by Mr Ballard, different evidence may have been, which evidence may have convicted Mr Griffiths. The test on appeal involves an assessment of the evidence as adduced. Re-litigation would, even in circumstances where the trial result was overturned, involve, on the authorities, an impermissible undoing of the finality of the trial. If errors occur, they must be corrected on appeal; as was done here. If witnesses have lied, then recourse is had to criminal sanctions not civil liability. 36 If the immunity is to operate, as the High Court has stated, and it is to operate consistently, then all that a witness does in court must be immune and so too all that is done by the witness out of court, which is so intimately connected with the evidence or the manner it is given, must also be immune. This is so whether the act is deliberate or inadvertent. (Cabassi, supra, at 141; D'Orta-Ekenaike at [39], [99]) In the words of Gleeson CJ in Keefe v Marks (1999) 16 NSWLR 713 at 720, when speaking of counsel's immunity: " … the principle of immunity which applies in such a case cannot be circumvented by drawing fine distinctions between the preparation and the conduct of the case, or between the … failure to advert to the matter … while he was in Chambers and his failure to do so while he was in Court." 37 Or in the words of Starke J in Cabassi: "But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court." (at 141) 38 The "breach of duty" pleaded against Mr Ballard, whether malicious or negligent, is immune from suit. 39 While Her Honour Associate Justice Harrison came to this view she expressed the view at [23], that if the "English law were applicable I would allow this matter to go to trial as it is arguable that Mr Ballard's evidence borders on being classified as fabricated." This was a reference to Darker, supra. If Darker stands for the proposition, submitted by the plaintiff, that malice or deliberate falsity during the investigation process vitiates the immunity, it is inconsistent with Australian authority and cannot be followed. 40 However, Darker does not stand for such a proposition. The House of Lords in Darker was dealing not with perjury or the conduct of a witness but with the conduct of police officers, as such, who manipulated the investigation of the offence and manipulated the material made available in the Prosecution brief and the evidence of another as part of a conspiracy to cause the plaintiffs to be charged with offences which they knew or believed to be false. This goes well beyond witness conduct and was so held. (see Darker at 459.F to 461.B and 462.F et seq) 41 I have far less confidence that, even on the English authorities, there is an arguable case against Mr Ballard for any common law claim. Her Honour is clearly correct, on authorities binding on this Court, that no arguable case is raised by the plaintiff against Mr Ballard at common law. 42 Little or no attention was paid by the parties before Her Honour as to the position of the Commonwealth, as distinct from Mr Ballard. While the claim against the Commonwealth, at common law, on the pleadings, includes vicarious liability arising from the conduct of Mr Ballard, it is not confined to that basis. 43 The pleadings as set out earlier claim damage from the Commonwealth because it did not take reasonable care in the conduct of analyses and to advise the DPP, fully and accurately, of the method and results of those analyses. Such a pleading is capable of being understood as going beyond the actions of Mr Ballard alone. It may include the procedures adopted by the Commonwealth to ensure accuracy of analysis and advice, including appropriate checks and balances. 44 Even on the question of vicarious liability, it is not clear that the immunity of a witness is enjoyed by the employer of the witness. An immunity is, in law, a defence or an immunity from suit, some kinds of which may be waived e.g. diplomatic or executive immunity. At least arguably, like privilege, it may not be available except to the individual who qualifies. Witness immunity must be pleaded. 45 There may be very good reasons, given the public policy basis for the immunity, for an employer of this kind to enjoy the same immunity but we need to avoid "the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence." (Mann v O'Neill (1997) 191 CLR 204 per McHugh J at 221) 46 While, in examining the rationale for the defence, there is strong reason to hold that an employer of an expert witness, the business of which employer is the provision of the expertise relied upon for the evidence, ought to be entitled to the benefit of the immunity, it is not beyond argument that the opposite ought to occur. By analogy, the privilege against self incrimination is available to an employee or officer of a corporation but is not available to the corporation even for the conduct of the employee or officer. 47 Even a strong probability of the immunity being available, to the Commonwealth in this case, does not allow the striking out of the case on a summary basis. The plaintiff is entitled to adduce the facts, argue the case and have his case against the Commonwealth dealt with at a hearing. The argument in favour of the immunity applicable to Mr Ballard being available to the Commonwealth is not so strong or so clear that the summary intervention of the Court is justified. In other words, even though the immunity is clear for Mr Ballard, it is not, in the case of the Commonwealth, "so obviously untenable that it cannot possibly succeed; manifestly groundless; so manifestly faulty that it does not admit of argument". (General Steel Industries v Commissioner for Railways (1964) 112 CLR 125) 48 In circumstances where there is an argument that the liability of the Commonwealth is for conduct beyond the role of witness (including, in that role of witness, the preparation of the expert analysis reports), there is an argument available that the immunity does not apply and the discretion to strike out the claim has miscarried to the extent that it relies on the immunity. NOTICE OF CONTENTION 49 The defendants raise, by notice of contention, additional bases for the motion to succeed. I do not need to deal with those grounds in relation to Mr Ballard. 50 The Commonwealth raises in the notice of contention, in relation to the breach of duty claim, the submission that there is no duty of care to the plaintiff. The duty of care is owed, it is said, to the prosecuting or investigating authorities by whom the Commonwealth was engaged and to whom it provided services. 51 The existence of a duty to one person does not preclude the existence of the same or a different duty to others. The Commonwealth relies on Sullivan v Moody (2001) 207 CLR 562 for the proposition that there is no duty. Sullivan v Moody does not expressly deal with, but does seem to assume that, the proposition that there is a duty owed by investigating or prosecuting authorities to potential offenders is unarguable (see Sullivan v Moody at 573, [25]; X v Bedfordshire CC [1995] 2 AC 633 at 754-755). It seems that X v Bedfordshire (particularly at 755.G) is apposite. But that case turns on the immunity of the witness with which immunity I have already dealt. 52 Sullivan v Moody deals with the "proximity" question. It concerned psychiatrists engaged to determine whether children had been the subject of sexual abuse and held that such persons did not owe a duty to suspected offenders even when those offenders were parents of the child. 53 There are a number of aspects of Sullivan v Moody that are significant. Because of the manner in which it was argued, and the prior judgment in Hillman v Black, no question arose that depended on the special tests associated with a strike out application. (Sullivan v Moody at [3]) 54 The Court held that foreseeability of harm is not sufficient to give rise to a duty of care (at [25] on p.573). The Court established the principle that a defendant "will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care." (at [42]) The Court said: "Different classes of case have given rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle." (at [50]) 55 The argument of the plaintiff is that there is an arguable basis (or rather that the defendant cannot show that there is not an arguable basis) for the existence of a duty of care because of the statutory power reposed in the Commonwealth or its officers and the duty imposed on the Commonwealth by the statutes under which the analyses are provided. Those statutes allow the appointment of a person as an analyst which person must conduct or supervise the conduct of the analysis. There is a requirement to provide the results to the owner of the substance (Poison and Therapeutic Goods Act s.37B(4)) and that the certificate does not require formal proof and is prima facie evidence of that which it certifies. (s.40 of the above Act and s.43 of the Drug Misuse and Trafficking Act 1985). It is said, in the above circumstances, that the Commonwealth is "the repository of statutory powers" and, unlike the psychiatrists in X or Sullivan v Moody, is not under an overriding duty inconsistent with a duty to the plaintiff. 56 There are significant analogies with Sullivan v Moody and one of the difficulties with which the plaintiff is faced is that the repository of the statutory duties is not the Commonwealth but Mr Ballard. Nevertheless, it is a matter that may depend on factual findings that are relevant to the proximity issue (especially the duty to report to the owner of the substance, in this case the Plaintiff) and the view expressed as to the strength of the Commonwealth's argument does not make the plaintiff's case capable, on this ground, of being struck out. MISFEASANCE IN PUBLIC OFFICE 57 Once more I do not need to deal with these issues as they affect Mr Ballard as I am of the view that his immunity runs to this aspect. 58 The Commonwealth does not always exercise public duties. In this case, the Commonwealth provides services, being drug analysis, for a fee through a division called a "business unit", at least so it is pleaded. 59 The duties and/or authority established by the State Acts are duties and authorities on an individual who is licensed under the relevant legislation. It is the individual that performs any "public duty". Indeed, it is at least arguable, that s.37B of the Poisons Therapeutic Goods Act and s.43 of the Drug Misuse and Trafficking Act 1985 do not deal with public duties at all. The State Acts allow any person, whether an employee of the State, Commonwealth or private business or an independent contractor, to be licensed. Such a person does not seem to be precluded from declining to do an analysis even after initially undertaking so to do. The only "duty" may arise from contract. 60 Even the issue of the certificate arising from the analysis does not seem to be cast in terms of "duty", in the relevant sense. If that is the "public duty" then, in any event, it is not "invalid" or "unauthorised" in that, even on a broad view, the certificate does set out the "result of the analysis" even though the analysis is flawed. It is necessary for the claim to go forward for the plaintiff to have an arguable case that there is some unauthorised or invalid act in the exercise of a public duty (Northern Territory v Mengel (1995) 185 CLR 307 at 370; Sanders v Snell (1998) 196 CLR 329 at [38], [42] – [48]). 61 Given the personal liability of Mr Ballard under any such claim and the immunity afforded to him, in order to succeed in this claim against the Commonwealth it would be necessary to show "de facto authority" to do that which is alleged. (Mengel at 347). There is no basis for such a claim and it is not pleaded. TRADE PRACTICES ACT 1974 62 Her Honour held that the immunity of witnesses applied to the provision of the Trade Practices Act 1974 and in particular to s.52 thereof. Her Honour came to that view because the statute is to be read in a manner that does not affect the common law to an extent greater than its expression clearly indicates. Her Honour did so by reference to her Honour's own judgment in Sovereign v Howarth [2003] NSWSC 1120 at [41] – [45]. 63 A concise summary of the principle is contained in the judgment of Gleeson CJ in Electrolux v AWU (2004) 78 ALJR 1231; 209 ALR 116; [2004] HCA 40 in which the Chief Justice said: "[19] Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, "it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law". That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances. [20] In Coco v The Queen, Mason CJ, Brennan, Gaudron and McHugh JJ said: 'The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.' (footnote omitted) [21] The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." 64 While s.52 of the Trade Practices Act modifies common law rights, it does so in pursuit of a general purpose not uncommon in modern legislation. The purpose of the legislation is not abrogated or qualified by the continued existence of the immunity to this class of action. If the legislature had intended this law, relating to general rights, to interfere with an immunity based on public policy and applying to such a specific class, it would be expected that the legislature would make that clear. I agree with Her Honour that the witness immunity enjoyed by Mr Ballard applies to action under s.52 of the Trade Practices Act. 65 As before, it is not unarguable that the witness immunity does not apply to the Commonwealth. It is necessary, therefore, to deal with the notice of contention going to this issue. 66 Apart from the witness immunity argument, the Commonwealth relies on two further arguments. Firstly, it is said that a statement made as evidence in curial proceedings is not made "in trade or commerce". Secondly, the content of the analysis and issue of the certificate were not conduct "in trade or commerce". Reliance is placed on Plimer v Roberts (1997) 80 FCR 303 and Monroe Topple & Associates v Institute of Chartered Accountants (2002) 122 FCR 110. 67 Essentially the Commonwealth argues that it is the content of the analysis or certificate that is misleading and the content is not the commodity being traded. The analysis itself is not in trade and commerce. There is force in this submission. But, as I understand the plaintiff's submission, it is said that the Commonwealth, through AGAL, is engaged in business. It is engaged in trade and commerce in supplying an analysis of the substance. That which was supplied was not an analysis of the substance, but a fabricated series of data that was compiled contrary to the results of the analysis. 68 To use the Noah's Ark analogy (Plimer v Roberts), when one sells a book on creationism by Author X, one is not being misleading or deceptive because arguably, creationism (or the facts supporting it) is misleading or deceptive. But if that which is supplied is not a book on creationism, or not written by Author X, then the misleading conduct is in trade or commerce. Arguably, that which is misleading and deceptive is the conduct of the analysis and that is not in trade or commerce. However, also arguably the Commonwealth is trading in substance analyses and that which was provided was not an analysis of the substance. The Commonwealth represented that it was providing something it did not. 69 In the circumstances, there is an arguable case against the Commonwealth and the discretion of Her Honour below miscarried. CONCLUSION 70 On the basis of the foregoing, I conclude that there is no error in the judgment below in striking out so much of the proceedings as are against the First defendant and so much of the proceedings against the Second Defendant as are based on misfeasance in public office. 71 I propose, subject to any submission on the form of orders and on costs, to make the following orders: a Appeal allowed in part. b The orders of Associate Justice Harrison issued on 25 August 2004 be quashed and in lieu thereof the Court makes orders in the following terms: i. Leave is granted to the Plaintiff to file the Further Amended Statement of Claim attached to the affidavit of John Edmund Michael O'Connor of 26 July 2004; ii. Proceedings against the First Defendant are dismissed; iii. Paragraphs 16, 29, 43 and 44 of the Further Amended Statement of Claim are struck out as are the words "jointly and severally" and "the First and" from paragraph 50 thereof; iv. Leave is granted to file a document reflecting the above orders. c The Second Defendant shall pay one third of the costs of the plaintiff as taxed or agreed. ********** - 1 - 31/01/2006 - - Paragraph(s) 01/02/2006 - - Paragraph(s) 11/04/2007 - Inserted correct citation for Sullivan v Moody (2001) 207 CLR 562 - Paragraph(s) 51 & Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.