Gillian Margaret Sneddon v State of New South Wales

Judgment 1Ms Sneddon sued three defendants in the Common Law Division for damages for physical and psychological injury: the Speaker of the Legislative Assembly ("the Speaker") as first defendant, the State of New South Wales ("the State") as second defendant and Mr Orkopoulos as third defendant. She obtained a verdict against the Speaker for $429,165.96 and a verdict against Mr Orkopoulos for $438,613.75; but her claim against the State was unsuccessful: see Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508 and [2011] NSWSC 842. 2The conduct in respect of which Ms Sneddon sued was conduct of Mr Orkopoulos, a member of the Legislative Assembly and a Minister of the Crown. Ms Sneddon worked in his electorate office. She was employed by the Speaker. The relevant conduct of Mr Orkopoulos was, in general terms, bullying, victimisation and harassment in consequence of Ms Sneddon's helping to bring to light allegations of criminal activity by Mr Orkopoulos. The Speaker was held to have breached a common law duty to provide a safe system of work. Mr Orkopoulos was held liable in tort in a way to be mentioned presently. The State was held to have no liability on account of Mr Orkopoulos's conduct. 3In this court, Ms Sneddon purports to appeal in respect of the quantum of damages awarded against Mr Orkopoulos and in respect of the verdict entered against her and in favour of the State. There is no appeal in respect of the Speaker. 4In relation to the State and its liability, Ms Sneddon contends that there should have been a finding of vicarious liability for the tortious conduct of Mr Orkopoulos by reason of either the Crown Proceedings Act 1988 or the Law Reform (Vicarious Liability) Act 1983. Under s 8 of the latter Act, vicarious liability could arise if Mr Orkopoulos were found to be "a person in the service of the Crown", a characterisation that the primary judge did not accept. 5In relation to Mr Orkopoulos and the quantum of damages, Ms Sneddon's contention is that, because the judgment against him was a default judgment by reason of his failure to file a defence - and because there were alternative claims against him for negligence and for intentional tort (as in, for example, Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1) - the trial judge erred by assessing damages by reference to the statutory constraints that apply under the Civil Liability Act 2002 to negligence actions instead of on the footing (more favourable to Ms Sneddon) that, because the liability was for intentional tort, those constraints did not apply so that, for example, aggravated and exemplary damages could be awarded. 6The question upon the present notice of motion filed by the State on 21 December 2011 is whether the appeal that Ms Sneddon purports to bring is, in terms of s 101(2)(r) of the Supreme Court Act 1970, an appeal: "from ... a final judgment or order in proceedings of the Court, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more; or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. 7There is no doubt that the appeal is from a final judgment or order of the Supreme Court. But the State contends that the $100,000 threshold is not met and that the appeal is therefore incompetent and must be dismissed. 8Unless the relevant sum is $100,000 or more, Ms Sneddon cannot appeal in the absence of a grant of leave to appeal. She has not sought leave to appeal and maintains that there is no requirement for leave. 9The State, as applicant on the motion, says that, in order to find that Ms Sneddon does not require leave to appeal, the court must be satisfied that it is "reasonably arguable" (or that there is a "realistic prospect") that the appeal would "change the wealth" of Ms Sneddon by $100,000 or more. This formulation is said to be derived from Jensen v Ray [2011] NSWCA 247. 10The State further says that this requirement is not met because, if it is shown that the State is vicariously liable for Mr Orkopoulos's conduct, the financial result, from Ms Sneddon's viewpoint (leaving to one side, any success she achieves in her appeal against Mr Orkopoulos himself) will be that she recovers only $9,447.79. This is on the basis that the Speaker should be assumed to have paid the damages of $429,165.96 awarded against the Speaker; that the primary judge expressly said in his judgment (at [296]) that "the total amount of damages recoverable by the plaintiff is $438,613.75" (that being the slightly larger sum awarded against Mr Orkopoulos); and that that manifestation of an intention that there should be no double recovery leaves only the difference of $9,447.79 potentially recoverable against the State. 11Ms Sneddon says that the formulation based on a reasonable argument or realistic prospect involving an increase in the appellant's wealth by at least $100,000 was, in Jensen v Ray , merely an example. That is, in my view, correct. As was there pointed out at paragraphs [9] and [10] of the judgment of Brereton J (with whom Campbell JA and Sackville AJA agreed), it is the value of the matter in issue in the appeal or the amount in issue in the appeal that is relevant for the purposes of s 101(2)(r). 12As Brereton J also pointed out (at [11]), the proposition that the quantification of a "matter at issue" in an appeal is limited by the claimed variation from the judgment below was rejected in Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450. There is no basis for a view that the content of the appellant's pocket is the only relevant yardstick. That is an altogether too narrow construction of "matter at issue". 13As far as Ms Sneddon's appeal against the State is concerned, I am satisfied that an amount exceeding $100,000 is in issue. Her contention is that the State is vicariously liable for the wrong perpetrated by Mr Orkopoulos, which wrong has already been found to involve liability for $438,613.75. That, at the least, is the sum to be ascribed to the "matter at issue" between Ms Sneddon and the State. 14It makes no difference, in my view, that damages of $438.613.75 have already been awarded against Mr Orkopoulos or that damages of $429.165.96 have already been awarded against the Speaker. The fact remains that, on appeal, Ms Sneddon will seek to establish a liability of the State in a sum that has already been quantified at much more than $100,000. 15In relation to Mr Orkopoulos, a consequence of the judgment in default of defence was that Ms Sneddon's pleaded allegations were taken to be admitted. There was accordingly an arguable basis on which it was open to the primary judge to assess damages for the alternative claim based on intentional tort, with those damages being unconstrained by Civil Liability Act provisions and, in particular, with aggravated and exemplary damages potentially being available. The contention that that approach should have been taken is one that could plausibly be maintained on appeal. 16Even then, however, one cannot predict with any degree of precision whether the re-assessed damages would exceed $438,613.75 by $100,000 (or $99,999 or $99,998 or some other particular figure). The best that can be said is that the likelihood of a differential of at least $100,000 is real. That, to my mind, is sufficient to mean that a sum of $100,000 is in issue as regards the appeal against Mr Orkopoulos. 17There is, however, another basis on which the same conclusion can be reached in relation to the appeal as it involves Mr Orkopoulos - and with greater mathematical precision. 18If Ms Sneddon succeeds in establishing vicarious liability of the State under s 8 of the Law Reform (Vicarious Liability) Act , the State will be liable to the extent of at least $438,613.75, being the damages awarded at first instance against Mr Orkopoulos; and, if the contention about re-assessment to which I have just referred succeeds, the State will be liable for a greater sum. 19In addition, however, it will be at least arguable that a finding of vicarious liability on the part of the State causes the Employees' Liability Act 1991 to cast the full financial burden on to the State, to the exclusion of Mr Orkopoulos, subject to the possibility that that result is negated by a finding that Mr Orkopoulos engaged in "serious and wilful misconduct". That the two pieces of legislation might interact in this way was recognised by Hoeben J in State of New South Wales v Eade [2006] NSWSC 84. Although that case concerned police officers, the avenue through which it was sought to establish vicarious liability of the State was s 8 of the Law Reform (Vicarious Liability) Act , dealing with "a person in the service of the Crown", not s 9 dealing specifically with police officers. 20If the result just outlined were to emerge, the burden of the damages for Mr Orkopoulos's conduct would, by statute, be cast entirely upon the State and Mr Orkopoulos himself would be wholly relieved. As it affects Mr Orkopolous, therefore, the appeal involves a matter in issue of at least $438,613.75. 21As between Ms Sneddon on the one hand and each of the State and Mr Orkopoulos on the other, therefore, there is a "matter at issue" exceeding $100,000 and it makes no difference that a verdict has been recovered against the Speaker or that the Speaker has paid. 22For these reasons, s 101(2)(r) of the Supreme Court Act is not the source of a requirement for leave to appeal as regards either the State or Mr Orkopoulos. 23The notice of motion filed by the State on 21 December 2011 is dismissed with costs.