A sad reflection on the current state of politics in NSW. Stewart, a Minister (then) in the Rees Labour Government, had been dismissed from Ministerial office (though not as an MP, of course) by the Premier after an allegation of bullying and inappropriate behaviour against a staff member, which had been investigated by prominent human rights barrister Chris Ronalds (at the Premier's request.) Stewart then sued the Premier and the Governor for dismissing him as a Minister! He is also suing Ronalds on the basis that (1) she owed him a duty of care in the law of negligence in preparing her report; (2) she owed him a duty to provide natural justice which had been breached and hence he was entitled to a declaration as to this.
Not surprisingly the CA rejected any claim against the Premier or the Lieutenant-Governor (who was acting at the time in the Governor's absence I think.) There is brief reference to the principles of "responsible government" and the fact that "at the Governor's pleasure", particularly in relation to core political appointments like Ministers, means what it says and that dismissal can be for "good or bad or no reasons"- [46].
The more tricky questions involved the liability in negligence and under administrative law principles of Ms Ronalds. On this the court concluded
(1) No duty of care owed in negligence in these circumstances. To impose a duty to those being investigated would create "incoherence" of the sort which also excluded liability of those investigating child abuse allegations in Sullivan v Moody- see Allsop P [50]-[58]. Hodgson JA considered a range of "salient features" of the case at [85]-[96] and said that most of them pointed to the existence of a duty, but at [96]ff concluded that these were "trumped" by the possible "conflict of duties" argument. His Honour referred to the "defensive" state of mind which would be created by the duty at [101]. There was also some discussion of the relevance of the possible "overlap" with the law of defamation. The members of the Court allowed the possibility, interestingly, that there might be some cases where a duty of care in negligence could co-exist with an action for defamation (see Hodgson JA at [104]). But the main reason for denying liability here was the "incoherence" argument. (But Allsop P at [56]-[58] thought that this was a case where the possible existence of an action in defamation and relevant defences was another reason not to allow a duty of care in negligence.)
(2) Not able to decide the issue of "duty to afford natural justice" in the absence of submissions from the other interested party (the staffer who had made the complaint.) Allsop P seems to sum up the issues well:
74 The place of the common law as the source of the principles of procedural fairness and the role of the declaration can provide real protection to individuals against the exercise of functions or powers which have the capacity to injure reputation and standing. Nevertheless, a question arises as to the relationship between the exercise of public and private power, in this case public power and individual capacity and the application of the principles of procedural fairness. More specifically, to what extent should such principles bind a private individual conducting a retainer in the absence of public power or of any contractual or associative obligations between the individual and the person whose reputation could be harmed?
So this will be an issue that will have to be litigated at the trial which can at least continue against Ms Ronalds on the natural justice point if Mr Stewart considers it worthwhile (the CA had decided to hear these major issues in advance of the full trial).
There was also some inconclusive discussion (again, because the complainant had not been heard) on the question whether Parliamentary privilege would apply to a report prepared for the executive government (at least if it was announced beforehand that it would be tabled in Parliament.)
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931