Cabassi v Vila [1940] HCA 41;

Cabassi v Vila [1940] HCA 41; - HCA 1940 case summary — Zoe

Assuming that the action is not premature and therefore liable on that ground to be dismissed, I pass to the demurrer, which, it should be noted, is a demurrer by a witness defendant not originally a party to the earlier proceedings. Although the question has not been directly raised in England, the researches of Mr. Sugerman have revealed a number of American authorities which cover the question. And I adopt two passages from two of the decisions which in my opinion correctly state the law and are conclusive. In each case the cause of action was laid in conspiracy either to give false evidence or to defraud by means of false evidence. The latter part of the second passage is exactly in point. The first is from the judgment of Wells J., speaking for the court in Dunlap v. Glidden[1]: - "The plaintiff cannot recover upon the ground alleged of false testimony given by some of the defendants. For an action will not lie against a witness for giving false testimony in another case (Damport v. Sympson13(1596) Cro. Eliz. 520 [78 E.R. 769].; Eyres v. Sedgewicke14(1620) Cro. Jac. 601 [79 E.R. 513].). If the judgment was obtained, as is contended, by fraud and perjury, the plaintiff has ample remedy by law. The court which rendered the judgment, upon proof of these allegations, would be bound to grant a new trial, so that, upon a further investigation, justice might be done. The witnesses, if guilty, might be indicted for perjury, and so might all those be indicted who had unlawfully conspired together to deprive the plaintiff of his rights, and their conviction would afford most convincing evidence that a review of the action should take place." The second I have chosen from the judgment of Allen J., speaking for the court in Stevens v. Rowe[4]: - "A party cast in a judgment in a suit at law cannot maintain an action against the adverse party for suborning a witness, whose false testimony tended to produce the judgment (Bostwick v. Lewis2(1804) 2 Day, 447; 2 Am. Dec. 73.; Smith v. Lewis3(1808) 3 Johns. 157; 3 Am. Dec. 469.); nor for the adverse party's fraud and false swearing, so long as the judgment remains in force (Curtis v. Fairbanks4(1844) 16 N.H. 542.; Lyford v. Demerritt5(1855) 32 N.H. 234.; Damport v. Sympson6(1596) Cro. Eliz. 520 [78 E.R. 769].; Eyres v. Sedgewicke7(1620) Cro. Jac. 601 [79 E.R. 513].; Revis v. Smith8(1856) [1856] EngR 51; 18 C.B. 126 [139 E.R. 1314].). A proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way. The plaintiff's only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute. An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation (Cunningham v Brown9(1846) 18 Vt. 123; 46 Am. Dec. 140.; Dunlap v. Glidden10(1850) 31 Me. 435; 52 Am. Dec. 625.; Grove v. Brandenburgh11(1844) 7 Blackf. (Ind.) 234.)." Another case to the same effect is Gusman v. Hearsey[15].

[13]

This question was deferred in the order of argument to the main question, which is whether upon the allegations in the statement of claim the plaintiff can maintain an action on the case in the nature of conspiracy. The allegations are in effect that the defendants and another person, who is not joined as a defendant, gave evidence which was false, and false to their knowledge, in the proceedings before the magistrate with the intention of deceiving the court and the plaintiff and that they did this in pursuance of a conspiracy and that in consequence of this conduct the court made findings opposed to the true facts which the plaintiff proved by her own evidence. The statement of claim sufficiently alleged that the defendants entered into a criminal conspiracy. But the crime of conspiracy and the action for conspiracy have not the same basis. In contrasting the crime with the tort Sir William Holdsworth said: - "The crime consists in the conspiracy; but the damage is the gist of the action by the party injured by the conspiracy - the damage, that is, flowing from the unlawful acts done by each and all of the conspirators in pursuance of their joint design. What we must look at, therefore, in order to establish a cause of action, is not so much the conspiracy, as the quality of the acts and the damage flowing therefrom. It follows that the conspiracy is important, not as establishing directly a cause of action in tort, but, firstly, sometimes as showing that the acts done were unlawful, because they amounted to a criminal conspiracy; and, secondly, always as an element in estimating the damage suffered" (Holdsworth, History of English Law, 2nd ed. (1937), vol. viii., at p. 394) - See also Savile v. Roberts[36]. An averment that the defendants criminally conspired together would not necessarily in itself be sufficient to state a good cause of action. It would be surplusage if the acts charged to have been done in pursuance of the conspiracy alleged would, if not so done, be torts. In Sorrell v. Smith[37] Lord Dunedin said: "Passing therefore, to the case of concerted action, the first and obvious observation is that if a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as founding a civil action is mere surplusage." Where the acts alleged to have caused damage to the plaintiff would not be unlawful if not done in execution of a conspiracy, the averment is an essential part of the statement of the cause of action, because the conspiracy imparts the unlawful character to the acts. In Ware and De Freville Ltd. v. Motor Trade Association[38], Atkin L.J. said: "It appears to me to be beyond dispute that the effect of the two decisions in Allen v. Flood3(1898) A.C. 1. and Quinn v. Leathem4(1901) A.C. 495. is this: that on the one hand a lawful act done by one does not become unlawful if done with an intent to injure another, whereas an otherwise lawful act done by two or more in combination does become unlawful if done by the two or more in combination with intent to injure another." In Sorrell v. Smith[41] Lord Dunedin approved of this statement, and in explaining the same principle used these words: - "But when there is nothing done which per se would be a tort, then one is at once faced by the consideration that a particular thing done, not in itself a tort, may, if done by an individual, be supportable though unpleasant, but may, if done by many in concert, become insupportable and create a real injury. This truism has been recognized by many learned judges. As example may be given the words of Lord Halsbury in Allen v. Flood3(1898) A.C. 1., and many other passages might be quoted"[43]. These statements are not expressed to refer to a conspiracy to do acts which would be unlawful apart from the conspiracy; it is pointed out that if these acts are torts the averment of conspiracy is surplusage. In the present case the acts alleged to have been done in execution of the conspiracy are in themselves unlawful and criminal. The ground upon which these acts could give rise, if at all, to a cause of action would be that they caused damage to the plaintiff. The conspiracy may aggravate the damage but it would not play any part in producing the unlawful quality of the acts, for they are unlawful in themselves apart from the conspiracy. If an action lay the damage, not the conspiracy, would be the gist of the action.

[14]

But, even if a conspiracy to commit a criminal act could add to or change the tortious quality of the act and in that way provide ground for an action other than that which may lie for the act itself, such an action would not lie if the execution of the conspiracy consisted in the giving of evidence by a witness in the course of a judicial proceeding. It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action. Some of the cases in which the rule is laid down are: - Revis v. Smith[44]; Henderson v. Broomhead[45]; Dawkins v. Lord Rokeby[46]; Seaman v. Netherclift[47]. In Munster v. Lamb[48] Brett M.R. and Fry L.J. reaffirmed the rule and discussed the reasons for its introduction. Brett M.R. said: "With regard to witnesses, the chief cases are, Revis v. Smith1(1856) [1856] EngR 51; 18 C.B. 126 [139 E.R. 1314]. and Henderson v. Broomhead2(1859) 4 H. & N. 569 [157 E.R. 964]., and with regard to witnesses, the general conclusion is that all witnesses speaking with reference to the matter which is before the court - whether what they say is relevant or irrelevant, whether what they say is malicious or not - are exempt from liability to any action in respect of what they state"[51] (The italics are mine). The Master of the Rolls continued: - "It was at one time suggested that although witnesses could not be held liable to actions upon the case for defamation, that is, for actions for libel and slander, nevertheless they might be held liable in another and different form of action on the case, namely, an action analogous to an action for malicious prosecution, in which it would be alleged that the statement complained of was false to the knowledge of the witness, and was made maliciously and without reasonable or probable cause. This view has been supported by high authority; but it seems to me wholly untenable"[52]. The following statements by Crompton J. in Henderson v. Broomhead[53] are quoted and approved of by the Master of the Rolls: - "The attempts to obtain redress for defamation having failed, an effort was made in Revis v. Smith1(1856) [1856] EngR 51; 18 C.B. 126 [139 E.R. 1314]. to sustain an action analogous to an action for malicious prosecution. That seems to have been done in despair"[55]. "No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. Cresswell J. pointed out in Revis v. Smith1(1856) [1856] EngR 51; 18 C.B. 126 [139 E.R. 1314]. that the inconvenience is much less than it would be if the rule were otherwise. The origin of the rule was the great mischief that would result, if witnesses in courts of justice were not at liberty to speak freely, subject only to the animadversion of the court"[57]. The Master of the Rolls added: "It is there laid down that the reason for the rule with regard to witnesses is public policy"[58] - See also Harding v. Bodman[59]; Henderson v. Broomhead[60], per Erle J.; Kennedy v. Hilliard[61]. It is clear then, that this rule under which witnesses are exempt from the liability to be sued is of general application to all actions. The reasons for the rule require that it should extend to an action on the case, if there could in principle be such an action, brought to recover compensation for damage alleged to have been caused by any evidence given in the course of a trial in pursuance of a criminal conspiracy to give such evidence. The existence of this rule is sufficient to dispose of the plaintiff's claim for damages.

[31]

In numerous other cases it has been held that such an action is not maintainable (Damport v. Sympson[93]; Eyres v. Sedgewicke[94]; Jerom and Knight's Case[95]; Harding v. Bodman[96]; Collins v. Cave[97]; Revis v. Smith[98]). In face of these authorities Mr. Hart could not and did not contend that the appellant could have sued any of the defendants individually for any damage she had suffered by their having committed perjury. He did, however, refer the court to the Queensland Criminal Code, sec. 132, which provides that any person who conspires with another to obstruct, prevent pervert or defeat, the course of justice is guilty of a crime, and to the speech of Lord Dunedin in Sorrell v. Smith[99], where his Lordship said: - "My Lords, it may seem self confident to be positive when so many learned persons have expressed other views, but candidly I never held a clearer opinion than the one I now express, that the effect of Allen v. Flood8(1898) A.C. 1. and Quinn v. Leathem9(1901) A.C. 495. is to settle beyond dispute that in an action against an individual for injury he has caused to the plaintiff by his action, the whole question is whether the act complained of was legal, and motive or intent is immaterial; but that in an action against a set of persons in combination, a conspiracy to injure, followed by actual injury, will give a good cause for action, and motive or intent when the act itself is not illegal is of the essence of the conspiracy. If that be so, the form of question which at first I indicated as what I should put to a jury is justified by the authorities. Before finally leaving the subject, it may be well to point out that all through the Mogul Case10(1892) A.C. 25. it was clearly indicated that if the facts had raised conspiracy to injure, the result would have been different. Thus Lord Watson says: If the respondents combination had been formed, not with a single view to the extension of their business and the increase of its profits, but with the main or ulterior design of effecting an unlawful object, a very different question would have arisen for the consideration of your Lordships'11(1892) A.C., at p. 42.. But no such thing is pointed out by the acts disclosed in that case, and Lord Bramwell, speaking of what might have been urged if the acts had been different, speaks of it then as an indictable conspiracy." He submitted that the statement of claim alleged the defendants had agreed to give false evidence in concert, that this was a crime within the meaning of the section; and that, upon proof that they had carried their illegal purpose into effect and the appellant had thereby suffered damage, she would have a complete civil cause of action against the defendants.

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Court

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Judgment (108 paragraphs)

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 (12 December 1940)

Parties

Cases Cited (1)