Monie v Commonwealth of Australia [2005] NSWCA 25 (7 April 2005)

CITATION: Monie v Commonwealth of Australia [2005] NSWCA 25

FILE NUMBER(S):

41246/2003

HEARING DATE(S): 22/02/2005

JUDGMENT DATE: 07/04/2005

PARTIES:

Peter John MONIE

Jennifer MONIE

Samuel MONIE Appellants

Commonwealth of Australia Respondent

JUDGMENT OF: Giles JA Bryson JA Hunt AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20043/2001

LOWER COURT JUDICIAL OFFICER: Dowd J

COUNSEL:

Mr D F Rofe QC/Mr A Tudehepe Appellant

Mr R S McIlwaine SC/Mr B Skinner Respondent

SOLICITORS:

S.K. & Associates Appellant

Australian Government Solicitor Respondent

CATCHWORDS:

Significant delay by the trial judge in giving judgment - approach on appeal to findings by the trial judge.

LEGISLATION CITED:

Commonwealth Employment Services Act 1978

Privacy Act 1988

Suitors' Fund Act 1951

DECISION:

(1) The judgement in favour of the defendant is set aside.

(2) A new trial is ordered on all issues.

(3) The costs of the first trial are reserved for the trial judge in the new trial.

(4) The defendant is to pay the plaintiffs' costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41246/2003

SC 20043/2001

GILES JA

BRYSON JA

HUNT AJA

Thursday 7 April 2005

MONIE & ORS v COMMONWEALTH OF AUSTRALIA

Judgment

1 GILES JA: Subject to the following paragraphs, I agree with the reasons of Hunt AJA and with the orders he proposes.

2 His Honour describes at [43] the approach to be taken on appeal where there is delay in giving judgment, derived from cases the most recent of which is Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 209 ALR 568. The approach is reflected in his Honour’s subsequent discussion of the reasons of Dowd J.

3 The thrust of the approach is that extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate. In Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals NSW Inc & Ors [2005] NSWCA 78, in which judgment was delivered after the conclusion of argument in the present case, I questioned at [123]-[124] whether delay was more correctly explanatory of deficiency otherwise found in the decision-making or expression of the decision. Referring to Expectation Pty Ltd v PRD Realty Pty Ltd, I said -

“123. Their Honours referred at [75] – [76] to the passing of time “that alters the normal approach of an appellate court”, described as “operative delay”. Delay is of course undesirable, and is contrary to the public interest in the prompt resolution of disputes. But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered – there would be no sense in causing further delay by a new trial. What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little.

124. There are difficulties in determining that the passage of time is operative delay. A reserved judgment is commonly written with some lapse of time and the intervention of other matters. The assumption that the passage of ten months is destructive of recollection and understanding where the passage of (say) two months is not may not be justified; and with the advantage of transcript, contemporaneous documents and the capacity of a trained mind, why is the passage of ten months, albeit undesirable, necessarily destructive at all? There is not a factual enquiry, and judges are not rated according to retentive capacity and application to the evidence and issues. On one view, delay is a possible explanation for deficiency in decision-making or expression of the decision, the deficiency being otherwise found, and what matters is the quality of the decision-making assessed by regard to the issues, the evidence and the judge’s reasons.”

4 It was not appropriate in Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals NSW Inc & Ors to take those matters further, and it is not necessary in this case to do so. There was here what could readily be thought to be operative delay, and as well more than the passage of time; there was the sorry tale of the judge’s repeatedly unfulfilled indications of when judgment would be given. Together these warned of distortion of the decision-making process. Even if there had not been delay, or apparent preparation of the judgment under pressure, the reasons of Hunt AJA demonstrate that the judge’s appreciation of the issues and his critical findings can not be supported, and that in truth adequate reasons have not been provided for dismissal of the plaintiffs’ claims. The delay and circumstances of pressure may well explain why that is so.

5 I agree with the orders proposed

6 BRYSON JA: I greatly regret the necessity of ordering a new trial. After a lengthy hearing, a long delay until judgment and an appeal, little progress has been made towards determining on proper bases the questions of existence and breach of duty of care, causation of damage and contributory negligence, all of which seem to me to be difficult. I see no other recourse than to order a new trial.

7 I agree with Hunt AJA.

8 HUNT AJA: The appellants — Peter Monie, his wife Jennifer Monie, and his son Samuel Monie — were plaintiffs in proceedings in the Common Law Division of the Supreme Court in an action brought against the Commonwealth of Australia. The Commonwealth was sued in relation to what was claimed to have been the negligence of employees of the Commonwealth Employment Service (CES) for which the Commonwealth was responsible. The CES was then an organisation within the Department of Employment and Industrial Relations, created pursuant to the now repealed Commonwealth Employment Services Act 1978. Peter Monie claimed damages for personal injury, and his wife and son claimed damages for nervous shock causing them to suffer from post-traumatic stress disorder. Dowd J dismissed the plaintiffs’ claims.

9 The plaintiffs’ case was that they lived on a property named “Thornleigh” in a reasonably remote area some 32 kilometres from Bingara, to the west of Inverell and Glen Innes in the north of the State. The property was about 5000 acres and it was owned by a Monie family company. That company and Peter Monie formed a partnership to run both commercial cattle and a cattle stud venture on the property. His son Samuel worked with Peter Monie in that venture. As the work increased, the Thornleigh partnership employed a jobseeker referred to it by the Commonwealth Employment Service office at Inverell to assist in the venture. He was provided with accommodation in a cottage on the property.

10 When that employee left of his own volition to take another position, a second jobseeker was referred by the CES and employed in his place. Whilst the second man was still employed, the partnership employed a third jobseeker referred to it by the CES, one Darren Winsor. That was on 24 March 1993. All three men were employed under the Commonwealth “JobStart” Scheme, whereby an employer was paid a subsidy by the Commonwealth for a limited period in order to assist persons who had been accepted by the CES as being eligible for that assistance. There are a number of categories of eligibility of jobseekers, but the relevant category in the particular case is not disclosed to either potential employers or employers who sign the employment agreement which the CES requires the eventual employer to sign. The most which is disclosed is an unexplained box in the employment agreement signed by the eventual employer called “PASS program category”, which identifies the relevant category by an equally unexplained letter and number.

11 According to the documents produced at the trial, the first jobseeker referred by the CES to the Thornleigh partnership was in category W 16 of the JobStart Scheme (“Super Wage Subsidy – UE [which apparently means unemployed] 24 months or more”). The second jobseeker was in category W 11 (“6 months Continuously Unemployed”). Winsor was in category W 13 (“Especially Disadvantaged”). This last category included persons as diverse as Aborigines, disabled people, a “Spouse of a Beneficiary”, unemployed persons aged between 55 and 64 years, migrant professionals with overseas qualifications, ex-offenders, a “DSP Recipient” and an “SA Recipient”. How Winsor was included in that category was not made known by the CES to the Thornleigh partnership until after the events occurred which led to the plaintiffs’ claims.

12 On 15 June, not quite three months after Winsor started work with the Thornleigh partnership, there had been an occasion during the day when Peter Monie had felt obliged to tell Winsor to do some work again, after which Winsor had become “very quiet”. He had heard Winsor’s car leave the property at the end of the day. That evening, Peter Monie was alone in the homestead when he heard a vehicle drive into the homestead area. Shortly afterwards, Peter Monie was shot from outside the homestead a number of times — the first shot struck him on the chin, knocking out one of his teeth; the second shot struck him in the lower fleshy part of his left arm; the third through his right shoulder as he moved away; and the fourth through his right wrist as he put his hand up to protect himself. He did not see who had shot him.

13 Winsor was arrested shortly thereafter and charged with the attempted murder of Peter Monie. All three plaintiffs gave evidence for the prosecution both at the committal proceedings and at his criminal trial. Winsor was found guilty as charged and given a total sentence of twelve years. He is, we were informed, to be considered for parole later this year.

14 Winsor was in fact an “Especially Disadvantaged” jobseeker because he was an ex-offender, with a record of 43 convictions from 1984 (when he was 13 years old) for dishonesty (stealing, forgery, obtaining benefits and valuable things by deception), violence (assault and assault occasioning actual bodily harm), public nuisance and other offences. In April 1989, he had received a two-year sentence with a non-parole period of 12 months for a large number of offences committed over a period of ten months. His last incarceration ended on 14 December 1992, having been in gaol for various matters since 2 June that year. He had been referred to the Thornleigh partnership on 22 March 1993.

15 The CES produced in answer to a Notice to Produce at the trial two documents relating to the referral of ex-offenders for employment. One was the “Ex-offenders” part of the 1984 CES Manual and the other was a May 1993 document “Jobseekers who are ex-offenders”. According to a statement produced at the trial by the CES, the 1984 document had been withdrawn at some time prior to Winsor’s referral “while new guidelines were being drafted”, and “there were no CES manuals in existence [at the relevant time] concerning the handling of ex-offenders”. This Notice to Produce was not tendered in evidence at the trial. Accordingly, no inferences can be drawn from the absence of any other such documents produced by the CES. It was the plaintiffs’ case that, although the 1984 document may have been “withdrawn”, the general procedures which the 1984 guidelines had identified would have been followed by the CES until otherwise instructed. The contrary was not suggested by the defendant to this Court. If there had been no procedural system followed in relation to the referral of ex-offenders at the relevant time, the defendant’s denial of negligence would appear to have been impossible to sustain. The May 1993 document subsequently in force was tendered in order to demonstrate the type of system which could have been followed at the relevant time, and to support the plaintiffs’ claim that the CES owed a duty of care to potential employers when referring ex-offenders for employment.

16 The 1984 document had provided that in each CES office there was to be one officer (usually a Senior Employment Officer) responsible for “oversighting” all matters concerning the employment of ex-offenders. Emphasis was placed on the need to obtain full details of any employment-oriented convictions of an ex-offender, with particular reference to gaps in the employment history which may alert people to the possibility of a conviction. This information was not to be divulged to any “outside person” without the jobseeker’s consent. The document also contained this instruction:

When an ex-offender is being considered for referral to a job which has some connection with the offence but, at the same time, appears unwilling to have the conviction disclosed, it should be pointed out that frankness about a conviction at the outset is usually the best course of action. Furthermore, being frank with employers will widen the range of future job opportunities. Ultimately, if the person refuses consent this decision must be respected. However, if, in the judgement of the EO [presumably, an employment officer], the nature and/or recency of the offence calls for its disclosure to a potential employer, and consent is still refused, a referral should also ultimately be refused. In these circumstances the job-seeker should be advised and the reason given.

17 The 1993 document elaborated this instruction in greater detail, but without any change in its substance. It, too, provides:

Where an ex-offender refuses consent to disclose and the conviction has a bearing on the job under consideration, the CES must decline referral ...

Although not expressly reflected in the 1984 document, it is convenient to note at this stage that the 1993 document specifically provides:

Jobseekers who are ex-offenders should not be referred using the ‘send straight down’ (SSD) or the “applicant to ring’ (ATR) method, unless the conviction is irrelevant to the position applied.

...

If a jobseeker refuses to allow the CES to discuss the nature of the conviction with potential employers or trainers, they cannot access any labour market programs as an Especially Disadvantaged client – ex-offender.

18 The 1993 document is also capable of amounting to an acknowledgement that, in referring ex-offenders to potential employers, the CES did owe a legal duty of care to those employers. It was the plaintiffs’ case that, if such a duty of care existed after the 1993 document came into force, it also existed before then because the task being undertaken by the CES was the same in substance at all times. The 1993 document identifies the guidelines as being relevant to JobStart ex-offenders as well as other ex-offenders. It commences:

By following these guidelines, CES staff will reduce the potential for legal liability.

The document also states:

When the CES assists a jobseeker eg. by making a referral, it owes a duty of care to people who may be affected by such a referral. These may be employers ... and members of the community who may have contact with the jobseeker during his/her employment or training.

The nature of the conviction may also limit the range of suitable employment options for the jobseeker, and in turn, may affect the CES’s ability to assist the client to gain employment or training. It is therefore essential that clients disclose the nature of their conviction so that the CES can discuss the suitability of various occupations with the jobseeker.

19 There follows in the 1993 document advice as to how the fact that the jobseeker is an ex-offender may come to the notice of a CES officer — for example, as a result of lengthy unexplained absences from the work force. Emphasis is again placed on the need for a conviction to be relevant to employment. Once the ex-offender’s conviction does become known to the CES officer, the jobseeker is to be advised that the information will be disclosed to potential employers if relevant, but only with the jobseeker’s consent. The document says that it should be explained to the ex-offender:

... that the CES is unable to refer him/her to employers ... unless the CES can ascertain the nature of the conviction because of the duty of care obligations.

...

If an ex-offender discloses the nature of the conviction to the CES but refuses to complete the ‘Consent to Disclose Relevant Information’ form, the CES must explain that without this consent the CES is restricted in the range of employment or training options it can offer. This is because under Duty of Care, if the conviction is considered relevant to a position, the employer must be advised.

...

Where an ex-offender refuses consent to disclosure and the conviction has a bearing on the job under consideration, the CES must decline referral and advise the ex-offender that because of the duty of care provisions under common law, the CES is unable to refer them to that position.

20 Winsor gave evidence at the trial that he had been registered with the CES some years earlier at Gunnedah (and perhaps also at Tamworth). He had been asked questions by the CES officer and he had answered them; he had not filled out a form. He did not think that he had disclosed his convictions when giving his answers because he could not remember whether he had been asked about them. He would have said that he had been in gaol if he had been asked. He agreed that he had suggested in a sound-recorded interview (conducted after his conviction and before the trial of the plaintiffs’ claim) that, whenever he filled out a form in the CES at Tamworth or Gunnedah, he always did disclose that he had been in trouble with the law, but he claimed that he had misunderstood the questions asked of him in that interview. He then conceded that what he had said in the interview was correct. He would also have consented to his convictions being disclosed to potential employers. He said that his answers on the form were put into the computer with his name and address by the CES officer to whom he spoke. He was given a CES card with a three digit registration number to produce on subsequent visits.

21 The only direct evidence of what happened in the CES office at Inverell concerning his employment at Thornleigh came from Winsor himself. The Commonwealth did not call the officer to whom Winsor had spoken. Winsor gave a statement to a solicitor in Gunnedah after he heard that the plaintiffs had commenced these proceedings. He claimed in that statement that, to the best of his knowledge, he was not on the CES register at the time he spoke to the CES office in Inverell. He was then working in a hotel in Inverell and saw an advertisement in the CES window for the job at Thornleigh. He went inside to ask about it, and a lady gave him a name and telephone number to ring. He made the arrangements to go and speak to Peter Monie, which he did. He said that he told the plaintiff that he had worked on a farm with his father, but had been unemployed since his father had died. In the subsequent sound-recorded interview, he said that he had previously been registered with the CES at Gunnedah, and that he had obtained the job in the hotel at Inverell through the Gunnedah CES. He said, however, that his job with the Thornleigh partnership had had nothing to do with the CES, which had merely given him the name and telephone number to contact. The lady he had spoken to had asked him for his name and what experience he had had. She had not asked him whether he was registered with the CES for work. She had not looked in the computer. He did not remember filling in any forms there. It was nothing to do with the CES. He was asked about these statements in his evidence at the trial and, after some apparent prevarication, he conceded that the statements made in the sound-recorded interview were correct.

22 Winsor’s account and characterisation of what happened in the CES office at Inverell concerning his employment at Thornleigh appears to be inconsistent with the CES’s own documentation. The records within its computer and the contract of employment signed establish that Winsor was referred for employment. The defendant expressly accepted that Winsor had in fact been referred for employment.

23 Evidence was given by Samuel Monie that, when seeking to have a third jobseeker referred by the CES, he told Mrs Anne Arca of the Inverell office (at that time Miss Anne Morris) that they wanted:

Just as before. [In its context, this was a reference to what had been required when the second jobseeker had been referred.] ... somebody who is trustworthy, reliable, hard working, honest. Somebody who can ride a horse. Somebody who can drive a tractor. Somebody that I can rely on to leave at Thornleigh when I’m away checking cattle on agistment or at a show with our stud cattle and also somebody that I can rely on because they’ll be around guns because we shoot kangaroos for our works [sic] dogs.

Although this conversation was not referred to in the particulars to the Statement of Claim or in the narrative statement of the facts relied on to establish liability filed before trial, Samuel Monie did refer to it in his affidavit when seeking an extension of time in which to commence proceedings — although without any reference on that occasion to guns being around. This “criteria” conversation (as it was referred to at the trial) was challenged in the cross-examination of Samuel Monie, but it was not denied by Mrs Arca in her evidence. She said that she had no memory of the event some nine years later. This was quite understandable, as these proceedings were not commenced until approximately seven years after that conversation.

24 The “criteria” conversation nevertheless remained disputed by the defendant. The plaintiffs’ case in relation to the type of jobseeker who should have been referred was put in the alternative. If the “criteria” conversation were not accepted, the plaintiffs said, such criteria would have been obvious to the CES as general considerations applicable to a worker on a property in a reasonably remote area. It would in any event, the plaintiffs said, be well-known that guns were used on such properties.

25 The plaintiffs’ case was neither pleaded nor presented with precision. Although the documents produced during the trial by the CES may not have been available before the trial, their production should have made the plaintiffs realise that any case based on a breach by the CES of an alleged duty to warn the Thornleigh partnership (as a potential employer) of Winsor’s convictions presented almost insuperable problems. Whatever argument may have been available to them beforehand that the disclosure of such information by the CES to a potential employer was the very purpose of obtaining it from the jobseeker — and thus disclosure would arguably be permitted: Privacy Act 1988, Section 14, Principles 2,9 and 11 and Schedule 3, National Privacy Principle 1.3(c) — both the 1984 and the 1993 documents demonstrate that it is made very clear to the jobseeker that his convictions will not be disclosed without his or her consent. In that situation, disclosure of the convictions would have been permitted in very few situations, none of which would appear to have been applicable in this case.

26 The amended Statement of Claim filed during the trial continued, however, to formulate the plaintiffs’ claim by alleging not only that:

(a) having regard to the matters concerning Winsor’s criminal history, the Commonwealth, through its servants and agents at the CES, was under a duty of care to the plaintiffs to exercise reasonable skill and care in selecting, referring and/or recommending to the plaintiffs persons suitable for employment at Thornleigh,

but also (in the alternative) that:

(b) having regard to the matters concerning Winsor’s history, the Commonwealth, through the CES, was under a duty of care to warn them of the material risks associated with employing Winsor at Thornleigh.

There was also a third basis of negligence pleaded, that

(c) the plaintiffs employed Winsor in reliance on representations made negligently by the CES officers that:

(i) all due care would be taken in screening and selecting only those suitable for the employment offered by the Thornleigh partnership;

(ii) the partnership’s circumstances, including its location, would be taken into account;

(iii) only such persons so screened and selected would be referred and/or recommended to the partnership; and

(iv) the person so screened and selected would not constitute a risk to the partnership’s business or to the personal health and safety of those persons with whom he worked in that employment.

As the defendant commented in its submissions filed at the end of the trial, this claim of reliance was somewhat inadequately pleaded.

27 The particulars in the amended Statement of Claim — converting them into a consolidated format — identify the negligence of the CES officers generally as:

(i) failing to screen, select and assess, or properly to screen, select and assess, proposed candidates for employment at Thornleigh;

(ii) failing to disclose to or to warn the plaintiffs that Winsor was a person with a long history of criminal convictions, including convictions for acts of dishonesty and of violence to persons;

(iii) failing to warn the plaintiffs that there were material risks associated with employing Winsor at Thornleigh; and

(iv) referring or recommending Winsor as a suitable candidate for employment at Thornleigh without disclosing or being able to disclose to the plaintiffs his criminal record.

Insofar as the plaintiffs’ case depended on the documents produced by the CES at the hearing, pars (ii) and (iii) presented the same almost insuperable problems for them, as did the first alternative within par (iv).

28 The very extensive written submissions provided by the plaintiffs at the end of the evidence nevertheless did not appear to press (or, in any event, to press clearly) any case based on the failure of the CES to disclose to the Thornleigh partnership Winsor’s convictions for dishonesty and violence. Part of the plaintiffs’ case was that it was foreseeable by the CES that Winsor, a person with a large number of convictions for acts of violence and recently released from prison, may commit a further act of violence and cause injury — not only to the employer but also to other persons living on Thornleigh — and that an inappropriate or careless referral could harm those persons. Based on either the criteria specified by Samuel Monie in his conversation with Mrs Arca or the application of common sense to the circumstances of the employment and living in a remote area, it was submitted that Winsor should not have been referred. There is a reference in the submissions to such a duty being owed at least in the absence of a warning or advice or stipulation that the employer should make his own inquiries, but that was not a repetition of the alternative case based on a duty of care to warn still pleaded. The submissions do not appear to be seeking (or, in any event, to be seeking clearly) to make any case based on reliance, although such a claim was not expressly relinquished. The only way in which reliance on the CES appears to have been put forward by the plaintiffs clearly at that stage was in answer to the allegation that they were guilty of contributory negligence.

29 The plaintiffs’ “Stage One Submissions” at the end of the evidence argued that the negligence of the CES in referring Winsor to the Thornleigh partnership caused Peter Monie’s injuries and the nervous shock of the other two plaintiffs because, if he had not been referred, he would not have been in a position to inflict those injuries or that shock. The plaintiffs’ “Stage Two Submissions” at the end of the evidence were concerned only with the many evidentiary disputes between the parties, and did not depart from the formulation of their case in the earlier submissions that the negligence consisted in referring Winsor for employment.

30 The defendant in its filed Defence denied that it sent or recommended Winsor to Thornleigh, or that it knew of his criminal history or was aware of any material risks associated with his employment at Thornleigh. It admitted that Winsor was subsequently convicted of the attempted murder of Peter Monie. The Defence denied that it was under any duty of care to the plaintiffs either to exercise reasonable skill or care in selecting and/or recommending to the plaintiffs persons suitable for employment at Thornleigh or to warn them of the material risks associated with employing Winsor at Thornleigh. The Defence asserted that, either when he interviewed Winsor at the time of his employment by the Thornleigh partnership or at any time prior to the shooting, Peter Monie had failed to inquire of Winsor as to whether he had any relevant criminal convictions. The Defence also asserted that the plaintiffs became aware that Winsor had a criminal history before the shooting, and that the chain of causation had thereby been broken by their continued employment of Windsor. Finally, the Defence pleaded that the plaintiffs were guilty of contributory negligence by failing to make such inquiries of Winsor, to make inquiries of the CES as to Winsor’s background or to seek from the CES the availability of references, and by continuing to employ Winsor after becoming aware that he had a criminal history.

31 In its submissions at the end of the trial, the defendant submitted that the only basis on which a duty of care could be established was by reference to the Thornleigh partnership’s reliance on a responsibility assumed by the CES:

(a) to vet the criminal records of all jobseekers for positions at Thornleigh with a view to culling potential applicants possessed of a criminal record, or

(b) in the alternative, to notify the potential employer of that record.

It was submitted that no such case had been proved, and considerable emphasis was placed on “privacy considerations” by which the CES was bound. The issue of reliance was, however, effectively irrelevant to the plaintiffs’ case as finally argued, although (as already pointed out) it remained relevant to the plaintiffs’ argument in answer to the allegation that they were guilty of contributory negligence. The defendant’s submissions in relation to the factual issues in the case may fairly be described as a “take no prisoners” defence.

32 The trial took place in both Armidale and Sydney, over sixteen days in June 2002. The main written submissions by the parties were filed the same month. Further submissions were filed in August 2002 and, after the decision of the High Court in Tame v NSW [2002] HCA 35; (2002) 211 CLR 317 (a decision relevant to the claims for nervous shock), in November 2002.

33 Judgment was given by Dowd J on 4 December 2003. The judge identified the plaintiffs’ case as being:

(a) the failure of the CES:

(i) to select suitable candidates properly for referral for employment on Thornleigh;

(ii) to assess the location and environment at Thornleigh;

(iii) to disclose Winsor’s long criminal history of dishonesty and violence;

(iv) to refer him as a suitable candidate for employment at Thornleigh without that disclosure;

(v) to warn the plaintiffs that they should rely on their own inquiries; and

(vi) to have a system which updated details of jobseekers’ backgrounds so as to reveal criminal convictions; and

(b) that the CES represented, either explicitly or impliedly:

(i) that all due care would be taken to screen and select only those persons suitable for the employer, and

(ii) that the person recommended for employment would not constitute a risk, but

(iii) knowing the risk, and

(iv) knowing and intending that the plaintiffs would rely on those representations,

the CES had referred Winsor for employment.

34 The judge made a number of findings in his judgment:

(1) that he was not satisfied that:

(a) the CES was aware of Winsor’s criminal convictions; or

(b) Peter Monie had made any inquiries of Winsor as to his criminal antecedents; and

(2) that he was satisfied that:

(a) the Thornleigh partnership was on notice of “some problem” with Winsor, but it made no attempt to explore the problem;

(b) the partnership was on notice that Winsor was “disadvantaged” in the employment market because of the very substantial subsidies involved in the JobStart arrangements;

(c) the partnership would decide on the suitability of Winsor for employment;

(d) the “criteria” conversation between Samuel Monie and Anne Arca did not take place;

(e) even if that conversation did take place, it did not:

(i) identify the absence of a criminal record; or

(ii) constitute a contract;

(f) there was no relationship of contract between the Thornleigh partnership and the CES which raised a duty or responsibility on the part of the CES to the partnership;

(g) the function of the CES was to refer the person for interview, not to represent that person as being suitable;

(h) there was no duty on the CES to investigate the environment of a remote location before referring a jobseeker for employment there;

(i) if there were such a duty, there was no evidence that the location of the shooting at Thornleigh had anything to do with the reasons for it;

(j) the CES had no duty of care to potential employers in relation to the establishment of the systems it used;

(k) by arranging for a jobseeker to contact a potential employer, the CES did not either directly or impliedly provide any basis for reliance by the Thornleigh partnership on that action;

(l) even if such a duty arose, there was no breach of it by the CES, as the violent act committed by Winsor was not as a result of any propensity on his part — as evidenced, in any event, by his criminal record;

(m) Winsor had informed Samuel Monie a week before the shooting that he had been in trouble with the law over an assault;

(n) Samuel Monie had informed his father Peter Monie at that time of this conversation, together with the fact that Winsor had been in gaol;

(o) their knowledge of these facts broke the chain of causation between any breach of duty on the part of the CES and the consequences of referring Winsor to the Thornleigh partnership for employment;

(p) if it did not break the chain of causation, the failure of the Thornleigh partnership to dismiss Winsor at that time constituted contributory negligence on their part to the extent of two-thirds of the damages which flowed;

(q) in the event that all of these findings were erroneous, Peter Monie was entitled to general damages of $100,000;

(r) there was no economic loss suffered by the Thornleigh partnership;

(s) the second plaintiff, Jennifer Monie (Peter Monie’s wife), did not suffer from any recognised psychiatric illness as a result of her husband being shot by Winsor, and accordingly was not entitled to damages for nervous shock;

(t) Samuel Monie, Peter Monie’s son, similarly did not suffer from any recognised psychiatric illness as a result of his father being shot by Winsor, and accordingly was not entitled to damages for nervous shock; and

(u) even if he did suffer from such an illness, Samuel Monie suffered no economic loss.

The judge did not assess any general damages to which either Samuel or Jennifer Monie would be entitled if his rejection of their claims in the absence of any recognised psychiatric illness were erroneous.

Only one of those twenty-one findings was even partially in favour of any plaintiff. That was the alternative finding that Peter Monie was entitled to general damages.

35 The plaintiffs, as the appellants in this appeal against the judgment given, filed extensive submissions challenging each of those findings other than the right of Peter Monie to general damages in the event that he was entitled to any judgment in his favour. They do challenge the assessment of $100,000 as general damages as being inadequate. The plaintiffs, however, realistically concede that, because many of the vital factual issues on which they lost depended at least in part on the judge’s findings on credit, this Court cannot make findings on those vital issues in their favour. They press only their application for a new trial on all issues. It is necessary therefore to refer to only three grounds of appeal in order to dispose of the appeal (grounds 2, 3 and 4), although the discussion of those grounds of appeal will involve some discussion of points taken in other grounds of appeal. Each of these grounds is based on the delay by the judge in giving judgment and on the consequences said to have flowed from the delay in this case. They are more fully described in pars [45] – [47], infra.

36 Dowd J reserved his judgment on 28 June 2002. Further submissions were filed on 2 August, and again on 22 October following a recent decision in the High Court which was relevant to the claims for nervous shock. According to unchallenged evidence admitted on the hearing of the appeal, the plaintiffs started in December 2002 to express concern to their solicitor, Mr Kozera, in relation to the non-delivery of judgment. Mr Kozera, following the usual procedure in such circumstances, first wrote to the Chief Judge at Common Law on 12 May 2003, asking whether some indication could be given as to when judgment would be given. As Dowd J was on leave until 10 June, Mr Kozera was informed that inquiries would be left until his return.

37 On 7 July, the judge’s Associate informed Mr Kozera that judgment would be delivered on 15 July. On the day before judgment was to be delivered, the Associate informed counsel for the plaintiffs that judgment would be delayed until 22 July. On the day before judgment was then to be delivered, Mr Kozera was again informed that the matter would not be listed. On 29 July, Mr Kozera was informed by the Associate that judgment would be given on 5 August. On the day before judgment was then to be delivered, the Associate informed Mr Kozera that judgment would not be given until 12 August. On 8 August, Mr Kozera was informed that judgment would not be delivered on 12 August. On 29 August, the judge spoke to counsel for the plaintiffs, apologised and said that judgment would be finished the following week. It was not given.

38 On 26 September, Mr Kozera wrote again to the Chief Judge at Common Law setting out the history to date with a request for his assistance in having judgment given. The Chief Judge’s Associate replied, noting that Dowd J had informed the Chief Judge that he expected to deliver judgment during the week concluding 17 October. This was almost two months after it had been promised. Still no judgment was given. The failure was reported by Mr Kozera to the Chief Judge on 17 October. Advice was sought by Mr Kozera as to whether he was following the correct procedure. The Chief Judge’s Associate replied on 21 October, after the Chief Judge had spoken to Dowd J, stating that the Chief Judge had been assured by the judge that judgment would be delivered by 29 October. In response to Mr Kozera’s inquiry concerning the procedure followed, the Associate said:

Justice Wood is sorry that there is little more that he can do to compel any judge to hand down a decision, although, as you are no doubt aware, it is always open for a complaint to be made to the Judicial Commission.

There is indeed nothing more that a Chief Judge can do than to ensure that a dilatory judge is given a fair opportunity to complete a judgment, to encourage that judge to do so and, at the appropriate stage when (despite the Chief Judge’s endeavours) it is clear that the judge is unlikely to perform his or her duty, to advise the inquiring party of the availability of the Judicial Commission to deal with that party’s complaint.

39 No judgment was given by 29 October. On that date the Associate to the Chief Judge informed Mr Kozera that Dowd J had been unable to give judgment by reason of his commitment to certain criminal proceedings. The judge was about to take two weeks leave, after which he had been given further additional time to write judgments. He had assured the Chief Judge that he would give his attention to this matter then.

40 On 6 November, Mr Kozera wrote to the Chief Justice, asking whether there was anything further that he could do. Mr Kozera explained that he and his clients were reluctant to make any formal complaint to the Judicial Commission, being under the impression that such a complaint may abort a lengthy trial without any decision having been handed down.

41 On 19 November, having that day just returned from an absence overseas, the Chief Justice informed Mr Kozera that Dowd J had told him that judgment would be delivered on 26 November. The Chief Justice added:

I realise that you have been given dates for delivery of judgment on earlier occasions. I expect that on this occasion you will not be disappointed.

42 On 25 November, the judge’s Associate informed counsel for the plaintiffs that judgment would be delivered on 28 November rather than 26 November. On the day before judgment was then to be delivered, the judge’s Associate informed counsel for the plaintiffs that the judge was “putting finishing touches to his judgment”, which would now be delivered “sometime from 3 December”. On 2 December, the judge’s Associate informed counsel for the plaintiffs that judgment would be delivered on 4 December at 9.30 am. On the following day, the time for the judgment to be delivered was delayed until 2.00 pm. Judgment was in fact delivered at 2.30 pm on that day. As emphasised by the appellants, this was more than seventeen months after judgment had been reserved, and there was every indication that it had been written in haste and under pressure.

43 In a series of cases, stemming largely from a decision of the English Court of Appeal in Goose v Wilson Sandford & Co (1998) 142 SJLB 92, the Australian Courts have dealt with the consequences of a judge’s delay in giving judgment. In particular, there has been one decision of the Court of Criminal Appeal (Regina v Maxwell, unreported, 23 December 1998), one of this Court (Hadid v Redpath [2002] NSWCA 16), and one of the Full Court of the Federal Court (Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 209 ALR 568) which have developed the approach to be taken on appeal. That approach may be stated as follows:

(1) Appellate courts usually give deference to findings of fact made by a trial judge on the basis that the judge has had the advantage, not open to the appellate court, of having seen and heard the witnesses give evidence and of observing their demeanour when they do so.

(2) That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge either failed to use that advantage or misused it. Statements made by the trial judge of a general assertive character — such as that the witness’s demeanour when giving the particular evidence cast doubt on the truth of that evidence — can usually be accepted as encompassing a sufficient consideration of the evidence.

(3) Moreover, the appellate court is entitled in such cases to assume that the mere failure of the trial judge to refer to evidence relevant to a particular finding does not mean that such evidence has been overlooked or that some other form of error has occurred.

(4) However, incontrovertible facts of the case or uncontested testimony may nevertheless demonstrate error in the findings of the trial judge notwithstanding that they are stated to be based on credibility findings.

(5) But the trial judge’s advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay.

(6) If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding.

(7) The consequences of significant delay in delivering judgment are not limited to the judge’s failure to use the advantage given to a trial judge of having seen and heard the witnesses give evidence and of observing their demeanour when they do so. With the emphasis placed for some years now on the need for cases to be resolved expeditiously — not only for the benefit of the parties to that particular case but also for the benefit of the parties in other cases waiting to be heard — the judge who has delayed, for whatever reason, giving judgment in the particular case will inevitably be subjected to considerable pressure to complete and deliver the judgment.

(8) That pressure will come in large part from the conscientious judge him or herself because of a recognition that the case needs to be resolved expeditiously. In many cases, the pressure will come from the Chief Judge who has administrative responsibility for the Division to which the judge is assigned, whether or not a complaint has been made concerning that case. In some cases, it will come from one or other or both of the parties to the case itself. In a few cases, it will come from the media, through either a party’s complaint or the public interest in the case itself. All of this pressure has an insidious effect on the judge, in that it may well lead to a subconscious effect on the judge’s decision-making process — not necessarily one of bias but rather on the speed with which, in the end, the decision has to be reached and on the degree of attention which the judge is able to give to the often difficult issues to be decided within that time. A decision which is rushed because of the pressure placed on the judge to apply him or herself to writing the judgment speedily after a significant delay may well cause the judge to overlook matters which should have been given more careful and unrushed consideration.

(9) And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.

The approach stated in pars (5) and (6) and in the last sentence of par (9) was made clear in the decisions of Regina v Maxwell in December 1998 and in Hadid v Redpath in November 2001. Although not reported, those decisions were well-known within the Supreme Court and the profession. It must be assumed that they were well-known to Dowd J when he finally delivered judgment in December 2003.

44 It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge — either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17; [2004] 1 WLR 1689 at [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial. That is what I understand the judgment in Expectation Pty Ltd v PRD Realty Pty Ltd at [69] et seq to be saying.

45 Giles JA has quoted in his concurring judgment what he said concerning the Expectation decision in another decision which this Court, differently constituted, delivered yesterday: Krivoshev v Royal Society for the prevention of Cruelty to Animals NSW Inc [2005] NSWCA 78. The comments he made there were obiter, and he concedes that it is not appropriate to take them any further in the present case. Those comments do not alter the opinions which I have expressed.

46 The plaintiffs’ ground of appeal 3 asserts that the judge:

... failed to use or palpably misused the advantage that he had as trial judge in properly considering and assessing the credit and reliability of [Peter Monie and Samuel Monie] ...

47 Ground 4 identifies the inferences to be drawn from:

(i) the judge’s failure to use that advantage, or

(ii) his misuse of that advantage,

together with:

(iii) the delay of seventeen months after the hearing had concluded before judgment was given, and

(iv) the fact that the decision was given following letters of complaint to the Chief Judge at Common Law and the Chief Justice concerning the delay.

The stated inferences relevant at this stage are:

(a) ... that, notwithstanding oral and written submissions given by the parties, his Honour had forgotten large parts of the essential facts and evidence in the case and/or had no clear recollection or impression of the demeanour of the plaintiffs and their witnesses of fact or their credibility by the time he came to deliver his judgment ...

(b) ... that in all the circumstances the appellants have not had or may not have had a fair trial of their respective cases; and/or

(c) that there has been a miscarriage of justice.

48 Ground 2 identifies a number of findings which cumulatively rejected every basis on which the plaintiffs relied for asserting that the CES owed a duty of care either to the Thornleigh partnership (as the prospective employer) or to the individual plaintiffs when referring Winsor to the partnership as a jobseeker under the JobStart Scheme. The existence of such a duty of care was vital to the plaintiffs’ case. The plaintiffs say that those findings have not been sufficiently explained in the judgment despite the delay in giving judgment, and that the inferences they have identified should be drawn by this Court as having been the consequences of the delay in this case because of their effect on the judge’s findings.

49 The delay of seventeen months in giving judgment in the present case was not satisfactorily explained by the judge and, in my opinion, such delay was inordinate. I am satisfied that the delay was destructive of the quality of the judgment given to the extent that the judgment cannot be allowed to stand. A few examples sufficiently demonstrate that no confidence can be placed on the judge’s findings of fact or rulings of law in relation to at least the two principal ways in which the plaintiffs’ case on liability was put.

50 Duty of Care The judge found that:

(a) there was no relationship of contract between the Thornleigh partnership (the prospective employer) and the CES which raised a duty or responsibility on the part of the CES to the partnership (par [51]);

(b) there was no duty on the CES to investigate what was involved in living in a remote location before referring a jobseeker for employment there (pars [51] – [52]; and

(c) the CES had no duty of care to potential employers in relation to the establishment of the systems it used for referring jobseekers for employment (par [55]).

51 The judge recognised that at least one issue which was relevant to all three matters was the extent to which the CES was obliged to check and communicate a criminal record (par [35]). Another issue which he recognised as relevant to these matters was the identification of the system which was in place at the time (par [35]). He found that the Thornleigh partnership was on notice that Winsor was “disadvantaged” in the employment market by reason of the subsidy which the Commonwealth paid to the partnership to employ him (such a subsidy having been paid in relation to the previous jobseekers referred to the partnership) (pars [36] – [39]), [49]), [53]). The judge next referred to the “criteria” conversation, which is a different issue and to which reference will be made later. The judge then found that, notwithstanding that the plaintiffs were on notice of some “problem” with the potential employee, they made no attempt to explore what the problem was (par [50]). He did not explain how the knowledge of Winsor’s disadvantage in the employment market (which category included many other than ex-offenders) should have led the plaintiff’s to discover his criminal background and violent propensity.

52 The judge found that the process followed by the CES was little more than a classification of categories of employment, so that someone trained only in clerical matters with no farm skills would not be sent to a country property, it being for the employer to interview the referred jobseeker and to decide his suitability for the particular employment offered (par [50]). Moreover, the absence of any investigation into the location where the jobseeker would work had no bearing on the shooting of Peter Monie by Winsor, as there was no evidence that the location of the shooting had anything to do with the reasons for it (par [52]). Apparently for these reasons only — no other reasons are identified — the judge made his finding that the CES had no duty of care to the Thornleigh partnership or to the plaintiffs in establishing the systems that it used.

53 Nowhere in the judgment is there any mention at all of either the 1984 CES manual or the May 1993 document “Jobseekers who are ex-offenders”, discussed in pars [15] – [19], supra. In the light of the plaintiffs’ concession that this Court cannot make findings on the factual issues in this case, I refrain from commenting on the effect of those documents on the existence of a duty of care to the plaintiffs beyond saying that they were clearly arguably relevant to that issue. Those documents formed a very substantial part of the plaintiffs’ case on the issue of whether the CES had a duty of care to potential employers and others when referring ex-offenders for employment. Whatever effect the documents may have on that issue in the end, the plaintiffs were entitled to have the judge deal with their extensive arguments based on those documents in such a way as to demonstrate that those arguments had been understood by him and that their rejection had been based on a clear and rational process of reasoning. The judge failed totally to discharge that obligation.

54 As the existence of such a duty of care was fundamental to the plaintiffs’ case as it was put at the end of the trial, the conclusion which must inevitably be reached is that the judge either gave those documents no consideration at all in his haste under pressure to write his judgment after such a long delay or completely misconceived their relevance. The omission to deal with such a significant part of the plaintiffs’ case on such a fundamental issue no doubt also gives rise to a reasonable apprehension that the judge became attracted to the decision which was the easiest to make. Either way, the plaintiffs have not had a fair trial on that fundamental issue.

55 “Criteria” conversation An alternative case put by the plaintiffs was based on the “criteria” conversation which Samuel Monie said he had had with Mrs Anne Arca of the CES office at Inverell. This is described in pars [23] – [24], supra. It was argued that, having set the criteria for the employee as being someone who was “trustworthy, reliable, hard working, honest”, who could be left at the property alone, and on whom reliance could be placed because he would “be around guns”, the CES acted negligently in referring Winsor with his long criminal records for violence. If the procedure laid down by the CES in 1984 had been followed in this case, and if Winsor refused to permit his relevant convictions to be disclosed, he could not have been referred to the Thornleigh partnership for employment. If the defendant were to argue that, the 1984 Manual having been withdrawn, there was no such procedure laid down at the relevant time, the mere failure of the CES to replace that procedure would itself have amounted to negligence. This was the more specific and carefully defined case based on the duty of care which the plaintiffs alleged was owed to both the Thornleigh partnership (as the prospective employee) and themselves as persons with whom Winsor would come into close contact on the property.

56 The judge found that there was no specific contractual relationship made at any time in relation to Winsor which raised a duty or responsibility on behalf of the CES towards the plaintiffs (par [51]). Insofar as this may have arisen out of the plaintiffs’ continued pleading of a claim of reliance on a negligent misrepresentation, which does not appear to have been pursued in the case as it was finally put (although it was not expressly relinquished), it was a misnomer on the part of the judge to describe it as a case in contract. The case which was in fact put based on the “criteria” conversation — or alternatively on the application of common sense to the circumstances of the employment and living in a remote area — was that it was foreseeable that a person with Winsor’s record of violence and his recent release from prison may commit a further act of violence and cause injury not only to the employer but also to other persons living on Thornleigh, and that an inappropriate and careless referral could harm those persons.

57 There is no clear reference in the judgment to such a case having been considered by the judge. There are a number of references to a “reliance” case, but that was not this case. The judge nevertheless did take some trouble to reject Samuel Monie’s evidence that the “criteria” conversation had taken place. He also used that finding for the purpose of considering his evidence concerning other important issues in the case as well. This was an appropriate approach to take, provided that the finding in relation to the “criteria” conversation was itself secure. It should be noted that Mrs Arca of the CES had understandably said that she had no memory of the event nine years later, so that there was no denial that the “criteria” conversation had taken place.

58 The “criteria” conversation commenced with a reference to a similar conversation having taken place before the referral of the second jobseeker (see par [23], supra). There was also, however, some cross-examination of Samuel Monie as to whether he had also set criteria for the first jobseeker to be referred, something which Samuel Monie had not asserted, and an issue which some appears to have been somewhat remote from the likelihood of the “criteria” conversation having taken place before the referral of Winsor, the third jobseeker. The judge reproduced that cross-examination (at par [41]), and it was clearly open to the interpretation that Samuel Monie’s recollection of the conversation concerning the first jobseeker was the result of reconstruction — that he “presumed” that he had had such a conversation and could say only what its terms “would have had to have been”, and had no recollection of what criteria had been set. His answers in relation to the contents of that particular conversation before the referral of the first jobseeker, however, remain remote from the issue of his credit in relation to the “criteria” conversation which was alleged to have occurred before the third jobseeker was referred.

59 Then, after referring to the terms of the later “criteria” conversation which was in issue (set out in par [23], supra), the judge criticised Samuel Monie’s credit (at par [44]) with an “assertive” statement without any specification of the evidence to which he was referring:

It is appropriate at this stage to consider the credibility of the witness Sam Monie. In his evidence, at each stage, his manner of answering was almost inevitably self-serving in the interests of the plaintiffs.

The judge added in relation to the three conversations with the CES (including that described in the previous paragraph), without giving any reasons for that finding:

His conversations concerning the employment of [the three JobStart jobseekers] are most unconvincing.

60 The judge went on to refer to Samuel Monie’s evidence concerning two issues in his claim for damages, with the comments that his evidence relating to one issue was “also tailored to suit the plaintiffs’ case”, and that his evidence relating to the other issue was “less than forthcoming”.

61 Counsel for the defendant sought to justify the general assertions identified in the paragraph [59], supra, by pointing to various passages in Samuel Monie’s cross-examination which were said to support the criticism of Samuel Monie’s credit. The existence of otherwise unidentified evidence which could support such assertions, however, is no answer to the judge’s failure to demonstrate in a very delayed judgment that he had given consideration to all of the relevant evidence, including that which could have supported a different finding, and to the many arguments of the plaintiffs as to why the evidence of Samuel Monie should be accepted (notwithstanding that some of them in relation to other conversations in issue are perhaps less than convincing). The judge did nothing to allay the losing party’s apprehension that he had, in his haste to complete his judgment, become attracted to the decision which was the easiest to make.

62 This Court nevertheless asked counsel for the defendant to select the best passage in Samuel Monie’s evidence what would have justified those general assertions. He selected the following passage directed to the “criteria” conversation before Winsor (the third jobseeker) was referred:

Q. You see, you have made all this up, haven’t you? A. No.

Q. All this business about the gun, you have made up for the purpose of giving your evidence here? A. That’s not right.

Q. When you set the conversation out previously, in the extension of time application, you never said one word about part of the criteria that related to the use of guns, did you? A. I don’t know.

Q. May I suggest to you that the first time you have ever mentioned, as part of the criteria, the use of guns and the shooting of kangaroos for dog meat is in the witness box today or yesterday? A. Sorry, what was the question?

Q. I am suggesting to you that the first time you have ever claimed that part of the criteria, that you claim you set, included the reference to guns on the property and the shooting of roos for dog meat – first time you have ever mentioned that – is when you gave your evidence at this trial? A. That’s not right.

Q. May I suggest to you that in your affidavit, which you filed in support of the extension of time application, this is what you said:

I’m away from the property a fair bit which leaves dad running the property with the assistance of mum. So we need someone who is hard working, reliable, honest and can be trusted. He must want to work. We are 70 kilometres from Inverell so we don’t want someone coming from town. The work involves driving tractors, riding horses, being involved with cattle, and general farm duties.

That was your evidence in the affidavit you filed in support of the extension of time application. That version says nothing about guns on the property and shooting roos for meat for your work dogs. How do you explain that? A. When I gave my evidence I guess I didn’t put it in. I don’t know, I can’t explain it.

Q. This is an affidavit which was prepared by your solicitor on your instructions for use in the extension of time application. Do you understand that? A. Yes.

Q. And it was an affidavit which you swore in October 1999? A. What’s the question?

Q. When the affidavit was prepared presumably you sat down with your solicitor and gave him instructions, is that right? A. Yes.

Q. I want to put to you that the evidence you have given here, about guns and shooting roos for dog meat, is something that you have thought up for the purposes of this trial and is not something that you ever thought about or ever formed any conversation prior to the trial here? OBJECTION. MULTIPLE QUESTIONS.

McILWAINE: To save any argument I will put it again, your Honour.

Q. What I am suggesting to you is that you have made up the part of the conversation that you say you had at the Inverell CES in March 1993 concerning guns on the property and the use of them? A. No, that’s not right.

Q. How can you explain, then, when you prepared and swore your affidavit in 1999 you made no reference to that at all? A. Because when I did that I obviously left it out. I can’t explain why I did.”

63 As stated earlier in this judgment, the plaintiffs’ response to this was that the reference to guns was immaterial, as it was well-known that guns were used on remote properties in the area. The judge did not deal with that argument in his delayed judgment, or demonstrate in any way to the plaintiffs that he had given consideration to it and had understood it.

64 Counsel for the defendant was given the opportunity to supply any other passages he could find which would have justified those general assertions in relation to Samuel Monie’s credit. He subsequently notified the Court that he did not wish to refer to any other passages. The passage quoted does not provide any proper justification for the attack made in such general terms. Again, the conclusion which must inevitably be reached is that the judge did not give sufficient attention to all of the relevant evidence.

65 Thus far, it had been demonstrated that the judge’s findings rejecting the two principal ways in which the plaintiffs’ case was put on liability are insubstantially based in his judgment. Neither finding can stand. Many other findings made by the judge have been demonstrated to have been insubstantially based in his judgment, but in the circumstances it is unnecessary to refer further to them.

66 Counsel for the defendant has nevertheless argued that there would be no point in sending the whole matter back for a new trial because the plaintiffs’ claims are doomed to failure. The defendant’s argument on appeal reflected that made at the trial. The whole of the plaintiffs’ case, it was submitted, was one of reliance on the CES sending a trustworthy jobseeker to Thornleigh. As Winsor had informed Samuel Monie a week before the shooting that he had been in trouble with the law over an assault, and as this had been passed on to Peter Monie at the time, together with the fact that Winsor had been in gaol, the chain of causation had been broken. This argument fails, for two reasons.

67 First, the findings by the judge concerning knowledge of Winsor’s background on the part of the plaintiffs depended very largely (but not wholly) on his findings concerning the credit of Samuel Monie in relation to the “criteria” conversation when he rejected his evidence in relation to this issue as well. These findings are therefore infected by the failure of the judge to demonstrate that he had given consideration to all of the relevant evidence on the issue of Samuel Monie’s credit to which reference has already been made. Just as this Court cannot make findings in favour of the plaintiffs on the factual issues which depended on the judge’s findings on credit, it cannot dismiss the appeal on the basis of such findings in favour of the defendant which depended on the same defective findings on credit.

68 Secondly, and more importantly, the foundation on which the defendant’s argument is based — that the whole of the plaintiffs’ case was one of reliance on the CES sending a trustworthy jobseeker to Thornleigh — is unsound. As already pointed out (pars [23], [31] and [56], supra), the claim based on reliance was not clearly put forward by the plaintiffs at the end of the evidence, although it was not expressly relinquished. They relied on the CES sending a trustworthy jobseeker to Thornleigh only in answer to the defendant’s allegation that they were guilty of contributory negligence. Reliance was thus effectively irrelevant to the plaintiffs’ case. Reliance played no part in the plaintiff’s principal claim, that the CES had been negligent in referring Winsor to the Thornleigh partnership by failing to ascertain that he was an ex-offender and to follow the procedure in relation to ex-offenders which it had been following since 1984. If the CES had followed its own procedure, and if Winsor had not consented to his criminal background being disclosed, it could not have referred him. If the CES had not referred him, Winsor would not have been in a position to inflict the injuries and shock on the plaintiffs. The chain of causation was complete as soon as Winsor was referred to the Thornleigh partnership.

69 In my opinion, the defects demonstrated in the judgment delivered by Dowd J constitute serious error on his part. The plaintiffs have not had a fair trial of their case. I am satisfied that the errors made by the judge occasioned a substantial miscarriage of justice. Accordingly, I would uphold the plaintiffs’ appeal and order a new trial on all issues.

70 Where a new trial is ordered, the costs of the first trial are often ordered to follow the event in the new trial. Such a consequence may be unfair in the present case, as the need for a new trial was not the fault of either party. Section 6A of the Suitors’ Fund Act 1951 authorises the payment of the costs of proceedings rendered abortive by the death or protracted illness of a trial judge, but the statute does not expressly provide for the situation where the proceedings are rendered abortive by the failure of the trial judge to give an adequate judgment. Section 6C of the Act authorises the payment of a limited sum of costs where not otherwise authorised by the Act but where payment would, in the opinion of the Director-General of the Attorney General’s Department, be within the spirit and intendment of (inter alia) s 6A. However, there has been no examination of this issue in the appeal. In my opinion, the costs of the first trial should be reserved for the trial judge in the new trial.

71 I propose the following orders:

(1) The judgment in favour of the defendant is set aside.

(2) A new trial is ordered on all issues.

(3) The costs of the first trial are reserved for the trial judge in the new trial.

(4) The defendant is to pay the plaintiffs’ costs of the appeal.

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LAST UPDATED: 07/04/2005