Sherrington v Fleming & Ors [2023] NTCA 1

1. Specifically, the applicant alleged that Mr Fleming published and promoted a 'Public Statement' (in which he recorded the findings of his investigation into the applicant's management of the Millingimbi School) which adversely affected the applicant's reputation in the Australian and local community and within the "education industry" and caused her significant embarrassment and shame, as well as adversely affecting her capacity to obtain future employment.[3] The applicant also alleged that, in publishing and promoting the Public Statement, Mr Fleming intended to cause harm to her; alternatively, knew that it would cause injury or harm to her or [and] was recklessly indifferent to that fact.[4] In the context of those allegations, the applicant alleged that Mr Fleming knew or was recklessly indifferent to the fact that he acted beyond power and alleged even that he knew that the serious allegations against the applicant were false or misleading, or was recklessly indifferent to that fact.

• [4] As a result of the matters summarised in the previous paragraph, the applicant alleged that Mr Fleming engaged in the tort of misfeasance in public office, for which the other defendants were said to be jointly and severally liable.[5]
• [5] The Independent Commissioner Against Corruption Act 2017, s 155, provides Mr Fleming with immunity from civil liability in respect of things done in good faith when acting, or purportedly acting, in an official capacity:
  1. Protection from liability - acting in official capacity

(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith when acting, or purportedly acting, in an official capacity.

(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

(3) This section does not derogate from Part VIIA of the Police Administration Act 1978.

(4) If a person is alleged to have acted in bad faith when acting, or purportedly acting, in an official capacity, a civil or criminal proceeding for the act may only be brought by leave of the Supreme Court.

(5) The Supreme Court is not to grant leave unless satisfied there are substantial reasons for believing the person acted in bad faith.

• [6] The applicant was not entitled to commence the proceeding brought against Mr Fleming without leave of the Supreme Court. Burns J refused the application for leave. His Honour was not satisfied that there were substantial reasons for believing that Mr Fleming acted in bad faith.[6]

1. It is common ground that that the decision of Burns J was 'interlocutory'. However, the judgment was final in the sense that it affected the substantive rights of the applicant (as to whether or not she could bring a proceeding against Mr Fleming personally). It was not a discretionary judgment, and more particularly was not a discretionary judgment in a matter of practice or procedure. A more stringent test would be applied if leave were sought to appeal from an interlocutory judgment relating to practice and procedure and many of the decisions of this Court in relation to applications for leave to appeal from interlocutory judgments are not directly relevant.[7]

• [8] In Niemann v Electronic Industries Ltd,[8] the Full Court of the Victorian Supreme Court dealt with an application for leave to appeal from the decision of the judge refusing applications by summons for dismissal of the plaintiffs' actions for want of prosecution. The orders the subject of the appeal were discretionary. McInerney J stated the principle on which the court should act in that case as follows:[9]

It follows that we ought to address ourselves to the questions whether the order of McGarvie J is attended with sufficient doubt to warrant its being reconsidered on appeal and secondly whether substantial injustice will be caused to the applicant if the order of McGarvie J is allowed to stand. In relation to both these matters it must be borne in mind that the order appealed from is an order made in the exercise of a judicial discretion.

• [9] Murphy J, with whom McInerney J was in substantial agreement, also referred to the requirement that substantial injustice result from any identified error:[10]

If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.

It appears to me that greater emphasis therefore must lie on the issue of substantial injustice directly consequent on the order. Accordingly, if the effect of the order is to change substantive rights, or finally to put an end to the action, so as to effect a substantial injustice if the order was wrong, it may more easily be seen that leave to appeal should be given. Indeed, this approach seems to have been adopted in the Darrel Lea Case.[11]

• [10] In Nationwide News v Bradshaw,[12] Nader J expressed concern that the emphasis given by Murphy J to the requirement of 'substantial injustice' created a risk of setting too high a standard. His Honour later observed:[13]

I would modify ... the requirement relating to substantial injustice by making it clear that the expression "substantial injustice", if it is to be used at all, should be understood as distinguishing the injustice from some mere technical or trivial injustice. It would remain a matter in the discretion of the Court of Appeal to decide whether some injustice, that is not merely trivial or technical, amounts to injustice so as to warrant the granting of leave to appeal.

• [11] Consistent with what was said by McInerney J in Niemann v Electronic Industries Ltd, in relation to applications for leave to appeal a discretionary judgment in a matter of practice or procedure, the authorities generally require that an applicant establish that the judgment appealed from is "attended with sufficient doubt so as to warrant its being reconsidered on appeal". That test was applied by Nader J and Asche J in the Court of Appeal in Nationwide News v Bradshaw.[14] O'Leary CJ stated "general rules or guidelines" as to the manner in which the court would exercise its discretion in granting leave, including the requirement that "some prima facie case must be made out, short of hearing the appeal itself, for interfering with the exercise of his discretion by the primary judge". His Honour then gave, as examples, the wrongful application of principle, and misunderstanding or erroneous assessment of factual material.[15]
• [12] The authorities distinguish the position where an interlocutory judgment determines substantive rights. In Niemann v Electronic Industries Ltd, Murphy J hinted at the difference in the passage extracted in [9] above, in suggesting that different considerations may well apply if the effect of the interlocutory order is to change substantive rights or finally to put an end to an action. His Honour reasoned that, if such an interlocutory decision were wrong, the consequences would render the injustice more substantial.
• [13] It may be noted that the High Court, in Adam Brown v Philip Morris,[16] rejected the necessity and wisdom of applying "rigid and exhaustive criteria" in determining appeals from interlocutory decisions. The Court made the following statement, which I consider is relevant to the within application:[17]

The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec):

" ... I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges at first instance, the result would be disastrous to the proper administration of justice ...".[18] ...

It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.

• [14] In Ex parte Bucknell,[19] the High Court considered s 35(1) of the Judiciary Act 1903 which, at that time, made provision for appeals to the High Court from judgments of the Supreme Court of a State, but subject to the proviso that an appeal could not be brought from an interlocutory judgment except by leave of the Supreme Court or the High Court. After observing that there was a prima facie presumption against appeals from interlocutory orders, and that it would be unwise to attempt an exhaustive statement of the relevant considerations, the Court gave an "indication" of the matters which were "relevant on an application for leave to appeal from an interlocutory judgment",[20] which included the following passage:

It is apparent that many different considerations may be raised by cases in which leave only is needed and that all the grounds upon which applications may succeed cannot be stated in advance. It is possible, however, to say how certain types of cases should be dealt with. But any statement of the matters which would justify granting leave to appeal must be subject to one important qualification which applies to all cases. It is this. The court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.

There is one class of case which raises little difficulty. If the interlocutory order ... has the practical effect of finally determining the rights of the parties, though it is interlocutory in form, a prima facie case exists for granting leave to appeal. For example, a judgment for either party on a demurrer might, in effect, be decisive of the whole litigation. Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course. ...".[21]

• [15] The applicant submits that her application for leave is within the category of interlocutory appeals where there is a prima facie case for granting leave. In this, she relies on the passage from Ex parte Bucknell extracted in [14] and the following passage from Johnson Tiles Pty Ltd v Esso Australia Pty Ltd:[22]

... Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties "a prima facie case exists for granting leave to appeal" - Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; Minogue v Williams [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance - Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

• [16] The proposed grounds of appeal are as follows:
  1. The judge below erred in adopting (Reasons at [70]-[75]) and applying a narrow construction of bad faith concerned exclusively with a subjective state of mind.
     • 1.1. The judge below ought to have found that bad faith may be established where, objectively, the ICAC made no real attempt (including through honest ineptitude) to determine whether or not the serious allegations were true.
     • 1.2. The judge below ought to have found that, at least in the exercise of power to report findings and publish statements containing allegations of improper conduct under Part 3 Division 7 of the Independent Commissioner Against Corruption Act 2017, bad faith may be established where, objectively, the ICAC made no real attempt (including through honest ineptitude) to determine whether or not the serious allegations were true before publishing them to the world.
  2. The judge below failed to properly consider or evaluate the Appellant's case in that:
     • 2.1. The judge below erred in characterising (Reasons at [81]-[82]) the Appellant's submission that the allegations in the Public Statement were false or misleading as a submission lacking particulars and thereby failed to deal with the particulars supporting the submission pleaded at paragraph 50 of the Statement of Claim.
     • 2.2. The judge below erred in concluding (Reasons at [83]-[91]) that if the reports referred to in the Reasons at [83] satisfied the content and form requirements of the Independent Commissioner Against Corruption Act 2017 then they could not support an inference of bad faith, and in so doing failed to consider or evaluate the reasons supporting a finding of bad faith which arose from the content and form of the reports.
     • 2.3. The judge below erred in concluding (Reasons at [95]) that the Appellant did not suggest that persons identified by her as not being spoken to by the ICAC in its investigation could have directly refuted the critical findings made by the ICAC, and in so doing failed to consider or evaluate whether the evidence of exculpatory persons or records not investigated by the ICAC supported an inference of bad faith.
     • 2.4. The judge below erred in determining (Reasons at [96]-[97]) that the Information Restrictions pleaded and particularised at paragraph [34] of the Statement of Claim must have been adopted for a malicious purpose in order to support a finding of bad faith, and in so doing failed to consider or evaluate whether the Information Restrictions supported an inference that the failure to investigate the exculpatory persons and records identified to the ICAC by the Appellant supported an inference of bad faith.
     • 2.5. The judge below erred in failing to consider or evaluate the discriminatory anonymisation of third parties in the Public Statement as supporting an inference of bad faith.
     • 2.6. The judge below erred in failing to consider or evaluate all of the evidence showing that Mr Fleming had predetermined to make adverse findings against the Appellant by 31 January 2021 and certainly before receiving her response to the allegations on 9 June 2021.
     • 2.7. The judge below erred in dealing with the reasons supporting an inference of bad faith individually, and not considering whether the totality of reasons provided by the Appellant supported an inference of bad faith.
  3. The judge below applied too onerous a standard of "substantial reasons for believing" such as to require the Appellant to prove the state of mind of Mr Fleming by way of preliminary trial before commencing proceedings.

1. I have read and considered the written submissions of counsel for and against the grant of leave in this matter. It is by no means clear that the decision of Burns J is wrong or attended with sufficient doubt so as to warrant its reconsideration on appeal. In my judgment, however, that is not the relevant test in relation to the within proposed appeal, against an interlocutory order or judgment of the kind pronounced by Burns J, which was neither discretionary nor in relation to a matter of practice and procedure. There is much wisdom in the test postulated by Nader J in Nationwide News v Bradshaw that, as a general guide, "the applicant will be expected to show that the interests of justice make it desirable to grant leave".[23] Some at least of the many grounds (and sub-grounds) relied on by the applicant are arguable, and I have not formed "a clear opinion adverse to the success of the proposed appeal", to use the words of the High Court in Ex parte Bucknell. In those circumstances, noting that the order made by Burns J was one which effectively put an end to the applicant's proceeding or intended proceeding against the respondent personally, I consider that I should follow the guidance offered by Ex parte Bucknell and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd and grant leave to appeal.

• [18] The question of costs should be reserved for the consideration of the Court on the hearing of the appeal.
• [19] I direct that the applicant's lawyers file minutes of order in the Registry to give effect to these reasons, namely:
  1. Leave is granted to the applicant to appeal the judgment of Burns J given on 9 September 2022 on the grounds set out in [16] of these reasons for decision.
  2. The issue of costs is reserved for the consideration of the Court on the hearing of the appeal.

[1] Sherrington v Independent Commissioner Against Corruption & Ors [2022] NTSC 67 ("Decision").

1. [2] See Supreme Court Act s 53(2) and s 53(3).
2. [3] Statement of Claim, par 83.

[4] Statement of Claim, pars 84, 85.

1. [7] See, for example, Iskandar v Merpati Nusantera Airline (No. 2) [2006] NTCA 3; (2006) 16 NTLR 22; Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Northern Territory of Australia v Roberts [2009] NTCA 5; Rogerson v Law Society of the Northern Territory [1993] NTCA 124; (1993) 88 NTR 1; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4; Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4.

[8] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431.

[9] Ibid, at 433.15, per McInerney J; see also at 441.10, per Murphy J.

[11] Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401.

[12] Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1, per Nader J at 12-13. Nader J was a member of the Court of Appeal hearing an application for leave to appeal a single judge decision refusing an application for trial before a jury in a defamation proceeding.

[14] Nationwide News v Bradshaw Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1, per Nader J. at 12.45: "With the requirement that the correctness of the primary judge's decision must be attended with sufficient doubt to justify the granting of leave to appeal, I would, in general, respectfully agree" and Asche J, at 19.30: "Applying those tests to the case before us I examine first whether the decision of the learned trial judge is 'attended with sufficient doubt to warrant its being reconsidered on appeal'".

[16] Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated and anor [1981] HCA 39; (1981) 148 CLR 170, at 177.

[19] Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221.

[21] The Court gave another example, namely an interlocutory order giving leave to sign final judgment, but pointed out that a court would be under a duty to take care that a defendant who was unlikely to succeed in his appeal did not, by appealing and obtaining a stay, defeat the very purpose of proceedings by way of summary judgment.

[22] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43].

1. [23] Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1, at 13.30.