Humphrys (Tobin) v Chief Executive Officer of Department of Communities WA

1. The originating application is dismissed.
2. The applicant do pay the respondent's costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Ms Tracey Ann Humphrys also known as Tracey Ann Tobin (Ms Tobin) commenced defamation proceedings in this Court against the Department of Communities WA. 2 A notice of address for service was filed on behalf of the Department by Ms Breen, a lawyer employed by the Department. After issues were raised by Ms Breen as to whether the Department could be named as a respondent, leave was given to amend the name of the respondent to the Chief Executive Officer of the Department. Ms Breen has since indicated that she appears for the respondent as so named. Nevertheless, Ms Breen makes no concession that the proceedings are properly constituted in that form. 3 The statement of claim in the proceedings complains about statements made by employees of the Department concerning the conduct of Ms Tobin. The statements are to similar effect and are alleged to have been published (a) in reports submitted to the State Administrative Tribunal; (b) in email communications between employees of the Department concerning the Tribunal proceedings; and (c) incorporated in reasons published by the Tribunal including on its website. 4 In correspondence with Ms Tobin, Ms Breen raised a number of concerns about the identity of the respondent, the form in which the claim is expressed and whether there is jurisdiction in this Court to entertain a claim of the kind expressed in the statement of claim. An application for summary dismissal was foreshadowed. Ms Tobin persisted with her application. 5 An application for summary dismissal was filed. It relied upon a range of matters including the form of the pleading and the identity of the respondent as well as an alleged lack of jurisdiction. Real questions appear to arise as to whether the circumstances of alleged publication could give rise to a claim in defamation, at least expressed in the way the claim is set out in the statement of claim. Issues also arise as to whether the respondent has been properly identified. However, in the result, the basis for the application for summary dismissal was confined to a claim that this Court lacks jurisdiction. 6 Ms Tobin filed submissions in response that dealt with other aspects that had been raised in correspondence but it is only necessary to deal with the basis upon which the application for summary dismissal is pressed. 7 I am relieved of the task of surveying the relevant principles because the various ways in which this Court may have jurisdiction over a defamation claim were helpfully reviewed by Lee J in Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [6]-[18]. 8 Plainly, in the present case there is no federal matter raised by the statement of claim. Those alleged to have published defamatory statements are employees of the State of Western Australia carrying out functions under Western Australian law and providing reports to the Tribunal in Western Australia. There is no right, duty or obligation in issue that owes its existence to federal law or depends upon federal law for its enforcement. There is no aspect of the claim that concerns the laws of the self-governing territories or publication within one of those territories. The alleged publication is not one made through the mass media or social media. There is no plea of publication in any place outside Western Australia. The defamation claim is not advanced as a claim that arises out of the same facts as a separate claim that is within jurisdiction. No issue concerning the implied constitutional freedom of political communication or the privileges and immunities of members of Parliament arises. 9 In the course of argument, Ms Tobin relied upon the fact that her claim included a complaint about publication on the website of the Tribunal. She said that the reasons of the Tribunal could have been downloaded in the Australian Capital Territory or the Northern Territory and on that basis the claim was within jurisdiction relying on the reasoning in Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451. It is to be noted that the claim considered in those proceedings was one in which the defamation as alleged was 'in respect of words alleged to have been published in the Australian Capital Territory, amongst other places in Australia': at [4]. 10 The alleged publications the subject of the claim by Ms Tobin are not of the same character as those considered in Crosby v Kelly. They are said to have occurred as a result of the activities of employees of the Department and are confined to publications as part of those employees performing their responsibilities in Western Australia. There is no suggestion that those employees have undertaken any publication outside of Western Australia or that they had any role to play in the inclusion of the Tribunal's reasons on its website. 11 No complaint is made about the conduct of the Tribunal itself and understandably so. A member of the Tribunal has the same protection and immunity as a judge: s 163(2) of the State Administrative Tribunal Act 2004 (WA). There are also immunities that extend to witnesses in Tribunal proceedings that may bear upon the merits of the claims that Ms Tobin seeks to raise, but, as I have already noted, the issue on the present application is confined to one of jurisdiction. 12 What can be observed is that there is no complaint to the effect that the employees of the Department for which the Chief Executive Officer is alleged to be vicariously liable, caused the alleged publications to be made in the Australian Capital Territory or the Northern Territory. No claim is made in the statement of claim concerning publication in either territory. 13 Of course, the assertion of a within jurisdiction federal claim is sufficient to attract this Court's jurisdiction and it is not necessary for the assertion to be adequately pleaded in order for the jurisdiction to be invoked: Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [26]. However, in the present case, there was no assertion of publication by the employees of the Department outside of Western Australia. To the extent that it was said in the course of argument that the claim concerned publication in a territory, it was a colourable claim that did not reflect any aspect of the true nature of the complaint that Ms Tobin wished to raise. 14 Therefore, the application for summary judgment must be granted and an order made for the proceedings to be dismissed. 15 Application is made for costs. As has been noted, Ms Breen is an employee of the Department. Costs are awarded by way of indemnity only. In the absence of proof to the contrary, there is a presumption that lawyers can look to the party for whom they act for payment of costs: Marsh v Baxter [No 2] [2016] WASCA 51 at [37]; Ernst & Young (Reg) v Tynski Pty Limited [2003] FCAFC 233 at [35]; and Noye v Robbins [2010] WASCA 83 at [300]-[303]. However, in the present case, Ms Breen does not appear as an independent solicitor. She is an employee of the respondent. In those circumstances, the presumption either does not apply or it is displaced. 16 As to in-house solicitors, in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, Kiefel CJ, Bell, Keane and Gordon JJ said at [47]: Where a government or corporate litigant has been represented by an employed solicitor, the courts have proceeded on the footing that the actual cost to the government or corporation of the legal services provided by its employed solicitor would not exceed, in any substantial amount, the sum recoverable by it for professional legal costs. In Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333 at 337, Davies A-J explained that: '[W]here an employed solicitor is involved, the traditional approach has been to award costs on a basis comparable to the costs which would have been incurred and allowed on taxation had an independent solicitor been engaged. The assumption has been made that, in an ordinary case, the indemnity principle will not be infringed by taking this approach.' 17 However, it should be noted that the indemnity principle governs. So, as is the case where a solicitor appearing for a party seeks an order for costs, there should be no order for costs in circumstances where the order will lead to the result that the indemnity principle is infringed. 18 The position in relation to costs usually being borne by a losing party was explained to Ms Tobin at a case management hearing and Ms Tobin was referred by Ms Breen to material that supported the claim that this Court lacked jurisdiction. Ms Tobin chose to proceed and the result was that costs were incurred. 19 This is not an instance where the extent of the likely costs that may be assessed may extend beyond a reasonable indemnity for the costs incurred in employing Ms Breen. Therefore, in the present case, it is appropriate that there should be an order for costs to be assessed in the usual way based upon an assumption that the indemnity principle will not be infringed. 20 Finally, Ms Tobin did comment upon the unique position occupied by Ms Breen as an employee of the Department acting for the Chief Executive Officer. Without intending any criticism as to the manner in which these proceedings were conducted, real issues can arise as to the circumstances in which it is appropriate for an employed lawyer to act as counsel in proceedings in which the lawyer's employer is being sued for damages. No doubt arrangements might be made in an effort to establish the necessary independence required for an employed lawyer to properly discharge the responsibilities of a lawyer acting for a party in court proceedings. However, the following observations by Cooke J in Henderson Borough Council v Auckland Regional Authority [1984] 1 NZLR 16 at 23 should be borne in mind: Although an employed barrister may properly represent his employer, it is as well to stress the importance of the independent consideration of a case that will more often be given by a barrister or barrister-and-solicitor whose experience and responsibilities are not confined to representing one client. This kind of professional detachment can be of value to the client in that it is likely to result in the more effective presentation of the client's case. In turn it is of value to the Court. And of course the more important the litigation the more important it tends to become. It is to be hoped that these factors will always be borne in mind by those concerned in deciding whether an 'in-house' counsel should take the responsibility of conducting any particular litigation for his employer. 21 For the above reasons, the application for summary dismissal should be upheld and the proceedings should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.