Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370

Reported Decision: 70 NSWLR 268 Appeal Outcome: Special leave refused with costs by the High Court - 13 June 2008

New South Wales Court of Appeal

CITATION: Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370

HEARING DATE(S): 13 September 2007

JUDGMENT DATE: 14 December 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 2; Young CJ in Eq at 144

DECISION: 1. Appeal allowed; 2. Cross-appeal dismissed; 3. Set aside the following orders made by Rothman J: (i) order (a); (ii) order (b) insofar as Rothman J quashed the orders of Master Harrison made on 25 August 2004; (iii) order (d) dismissing the application of the second defendant (the Commonwealth of Australia) for a stay of proceedings; (iv) order (e) ordering the second defendant (the Commonwealth of Australia) to pay one third of the costs of the plaintiff (Mr Griffiths) on the motion before Master Harrison and on appeal to Rothman J; 4. (a) vary order (1) made by Master Harrison so that the order now made is that the proceedings against the first and second defendants (Mr Ballard and the Commonwealth of Australia) are dismissed; (b) confirm order (2) (in respect of costs) made by Master Harrison; 5. Order that the plaintiff (Mr Griffiths) pay the costs of the first and second defendants (Mr Ballard and the Commonwealth of Australia) on the appeal before Rothman J; 6. Order that the plaintiff (Mr Griffiths) pay the costs of the second defendant (the Commonwealth of Australia) on the appeal and of the first defendant (Mr Ballard) on the cross-appeal.

CATCHWORDS: EVIDENCE – witness immunity – immunity where conduct sufficiently connected and preparatory to proceedings – statutory analyst undertook analysis of substance– s 37A Poisons and Therapeutic Goods Act 1966 – certificate of analysis issued under Drug Misuse and Trafficking Act s 43 – certificate issued for criminal prosecution – analyst manipulated testing of substance – plaintiff argued testing undertaken at investigative phase not forensic phase - whether analyst protected by principle of witness immunity - EVIDENCE – witness immunity – underlying rationale – ultimate consideration finality of judgments – proceedings would require retrial of evidence of analyst – whether inconsistent with finality of judgment - VICARIOUS LIABILITY – immunity of wrongdoer – employer seeking to rely on immunity of employee – whether immunity extends to protect a person who is otherwise vicariously liable - NEGLIGENCE – duty of care – imposition of duty of care – court would not ordinarily impose duty of care where duty would impose conflicting claims or obligations and indeterminacy of liability - analyst appointed by Minister under statute – proof of substance provided by analyst fundamental to prosecution – whether trial judge erred in finding arguable case that duty of care existed - TRADE PRACTICES – trade or commerce – issue of statutory certificate – certificate issued to prosecuting authorities – certificate certified content of substance for purposes of criminal proceedings – content of certificate related to witness' evidence – certificate issued for fee – whether certificate issued in trade or commerce - PROCEDURE – summary judgment – inappropriate where real question to be tried