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Mahon v Rahn (No 2) [2000] 1 WLR 2150

Mann v O’Neill (1997) 191 CLR 204

P v Manny [2010] ACTSC 50

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878

Springfield Nominees Pty Ltd & Ors v Bridgelands Securities Ltd (1992) 38 FCR 217

Taylor v Director of the Serious Fraud Office [1999] 2 AC 177

United States Surgical Corp v Hospital Products International Pty Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 7 May 1982)

Westcott v Westcott [2009] QB 407

Butler, S (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ACTCA No. 24 of 2010

ACTCA No. 26 of 2010

SC No. 601 of 2005

Judges: Refshauge, Burns and Marshall JJ

Court of Appeal of the Australian Capital Territory

Date: 21 May 2012

IN THE SUPREME COURT OF THE ) ACTCA No. 24 of 2010

)

AUSTRALIAN CAPITAL TERRITORY ) SC No. 601 of 2005

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: WARWICK SHIELS

Appellant

AND: JEFF MANNY

First Respondent

JEFF MANNY PTY LTD

ACN 097 755 916

Second Respondent

ORDER

Judges: Refshauge, Burns and Marshall JJ

Date: 21 May 2012

Place: Canberra

THE COURT ORDERS THAT:

1. The appellant’s appeal is allowed to the extent that the judgment of the trial judge awarding damages of $20 000.00 for the matter first complained of is set aside, and judgment for $50 000.00 is substituted.

2. The remainder of the appellant’s appeal is dismissed.

3. The application by Judith Leslie Shiels to be joined as an appellant is refused.

4. The parties have leave to file and serve written submissions as to costs within 14 days.

IN THE SUPREME COURT OF THE ) ACTCA No. 26 of 2010

)

AUSTRALIAN CAPITAL TERRITORY ) SC No. 601 of 2005

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JEFF MANNY

Appellant

AND: WARWICK SHIELS

Respondent

ORDER

Judges: Refshauge, Burns and Marshall JJ

Date: 21 May 2012

Place: Canberra

THE COURT ORDERS THAT:

1. The appellant’s appeal is dismissed.

2. The parties have leave to file and serve written submissions as to costs within 14 days.

IN THE SUPREME COURT OF THE ) ACTCA No. 24 of 2010

)

AUSTRALIAN CAPITAL TERRITORY ) SC No. 601 of 2005

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: WARWICK SHIELS

Appellant

AND: JEFF MANNY

First Respondent

JEFF MANNY PTY LTD

ACN 097 755 916

Second Respondent

IN THE SUPREME COURT OF THE ) ACTCA No. 26 of 2010

)

AUSTRALIAN CAPITAL TERRITORY ) SC No. 601 of 2005

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JEFF MANNY

Appellant

AND: WARWICK SHIELS

Respondent

Judges: Refshauge, Burns and Marshall JJ

Date: 21 May 2012

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

History

1. In 2004, Peter Shiels (the first plaintiff in the proceedings below) and his son, Warwick Shiels (the second plaintiff in those proceedings) operated a karate school for adults and children in Belconnen. They had operated this school since 1985. Peter Shiels at that time was a retired lawyer, and his son Warwick Shiels was a senior constable in the Australian Federal Police. Jeff Manny (the first defendant also in those proceedings) carries on business in the Belconnen area, and is the sole director and shareholder of Jeff Manny Pty Ltd (ACN 097 755 916) (the second defendant in those proceedings). For convenience, and because both the second plaintiff and the first defendant have each commenced appeals, we will describe the parties by reference to their roles in the proceedings below where we do not refer to them by name.

2. In August 2004, Jeff Manny’s three sons were students at the karate school operated by the first and second plaintiffs. On 27 August 2004 there was a minor physical altercation at the school between Peter Shiels and Jeff Manny. Warwick Shiels was present at the time but took no part.

3. Jeff Manny reported this incident to the Police, claiming he was assaulted by both Peter Shiels and Warwick Shiels.

4. The next day Peter Shiels alleged he received threats from Jeff Manny over the telephone. That matter was reported to the Police and Peter Shiels obtained “a restraining order” against Jeff Manny. Warwick Shiels received text messages from Jeff Manny on 28 August 2008, apparently asserting a relationship between him and Jeff Manny’s wife.

5. Thereafter, Jeff Manny wrote two letters and sent them to the Australian Federal Police. The first letter, dated 1 September 2004, alleged both Peter and Warwick Shiels had assaulted him on 27 August 2004. The second letter, dated 9 November 2004, was on the letterhead of “Jeff Manny Pty Ltd ABN 90 097 755 916” and was addressed to “Superintendant Belconnen Police Station”. This letter also referred to the alleged assault and, inter alia, contained allegations that Peter Shiels was a paedophile, that he had molested young boys, including Jeff Manny’s own children, and that on the Saturday prior to 9 November 2004 he made a telephone call to Jeff Manny threatening to harm him and his children if they did not leave town. In that letter he also alleged that Warwick Shiels molested girls and had engaged in “mental and physical assault” against boys.

6. The terms of this second letter, which contains the first matter complained of, is set out in the judgment of the court below: P v Manny [2010] ACTSC 50 at [47].

7. On 21 April 2007, after proceedings had been commenced with respect to the first matter complained of, Jeff Manny had a conversation with David Delfino, a tenant of one of Mr Manny’s companies. Mr Delfino testified that Jeff Manny said, of Warwick Shiels: You should not associate with this man. This man is a pig. He will make trouble for you. He is nothing but trouble. He is a paedophile. He has had relations with my wife. He is nothing but trouble. Stay away from him. He is a pig. Mr Delfino went on to testify that Jeff Manny said he took Warwick Shiels to a brothel “to stop his sexual urges”.

8. Before the learned Trial Judge, Jeff Manny disputed that he made these statements. His Honour was satisfied that he did. His Honour’s finding in that regard is not the subject of appeal. These statements by Jeff Manny constitute the second matter complained of. The Decision

9. The learned Trial Judge found that the first matter complained of conveyed the following imputations, which were defamatory of both Peter and Warwick Shiels: Peter Shiels (a) that he was a paedophile; (b) that he had sexually molested Jeff Manny’s children; (c) that he had sexually molested a number of children, especially young boys, apart from those of Jeff Manny; and (d) that on Saturday 4 December 2004 (semble 4 November 2004) in a telephone call, he threatened to harm Jeff Manny and his children if they did not leave town. Warwick Shiels a) that he cannot be trusted to have children in his control; b) that, under the pretext of instruction, he had sexually molested a number of girls; and c) that because he hates boys, he had mentally and physically abused boys in his care.

10. His Honour dismissed defences of absolute and qualified privilege and triviality, finding that Jeff Manny was “activated by express malice” in making the defamatory statements in the letter. That finding was the subject of appeal by Jeff Manny, but that ground of appeal was abandoned. His Honour awarded Warwick Shiels damages of $20 000.00 for the matter first complained of, but declined to allow his claim for economic loss. By the time judgment was handed down Peter Shiels had died, and his Honour, relying on s 22 of the Civil Law (Wrongs) Act 2002 (ACT), declined to assess damages in his case.

11. In addition, the learned Trial Judge dismissed a claim for damages against Jeff Manny Pty Ltd on the grounds that he was not satisfied that Jeff Manny had forwarded the letter of 9 November 2004 on behalf of the company, albeit that the letter was under the company’s letterhead.

12. With respect to the second matter complained of, the learned Trial Judge found that the statements made by Jeff Manny to Mr Delfino were defamatory of Warwick Shiels, and conveyed the following imputations: (a) that he is a paedophile; (b) that he is guilty of the crime of sexual assault on young girls; and (c) that he presents such a threat to the wellbeing of young girls with whom he comes into contact, that Jeff Manny took him to a brothel to reduce the risk of his committing sexual assaults on girls.

13. His Honour rejected a claim for qualified privilege under s 139A of the Civil Law (Wrongs) Act and also dismissed a defence of triviality. He awarded Warwick Shiels damages of $4 000.00 for this matter.

14. In the course of the hearing, an issue arose concerning the source of the letter of 9 November 2004 used by the plaintiffs in commencing the proceedings before his Honour. Put briefly, it appears that the letter in the possession of the plaintiffs, based upon which they commenced their proceedings, came into the hand of Peter Shiels as part of documents subpoenaed by him from the Australian Federal Police for the purpose of obtaining a protection order against Jeff Manny in the ACT Magistrates Court. That letter, together with the other documents produced under subpoena by the Australian Federal Police for the purposes of the proceedings in the ACT Magistrates Court, was subject to an implied undertaking that it would only be used for the purposes of those proceedings: Hearne v Street (2008) 235 CLR 125.

15. Confusion surrounded the source of the copy of the letter used by the plaintiffs in commencing their proceedings. Initially, Peter Shiels testified that he believed he had another copy of the letter at that time, which had come from his son. Peter Shiels subsequently became aware that this was not correct, and on 13 March 2008 he made an ex parte application before Magistrate Madden seeking leave to use the letter in the defamation proceedings already commenced by himself and his son. The application was granted.

16. After becoming aware of these facts, the defendants sought to reagitate the issue before Magistrate Madden, invoking r 1613(2)(a) of the Court Procedures Rules 2006 (ACT) which empowers a court to set aside orders made in the absence of a party. As Magistrate Madden was on extended leave, the parties asked the learned Trial Judge to remove that matter into the Supreme Court under s 270 of the Magistrates Court Act 1930 (ACT). The defendants asked his Honour to set aside the order of Magistrate Madden, and to dismiss the proceedings in so far as they related to the first matter complained of as being an abuse of the process of the court.

17. His Honour ordered that the proceedings concerning the leave granted by Magistrate Madden be removed into the Supreme Court. He ordered that the leave granted by Magistrate Madden be set aside. He then considered whether to grant leave for the plaintiffs to use that letter in the proceedings before him and made an order granting that leave. The Appeals

18. Warwick Shiels has appealed on the following grounds: i. His Honour erred in that the amount of damages awarded to the second plaintiff was manifestly inadequate. ii. His Honour erred in not making an award of damages in favour of the First Plaintiff or his deceased estate. iii. His Honour erred in his Honour’s construction of s 122 of the Civil Law (Wrongs) Act 2002 (ACT) as to the effect of the death of the first plaintiff. iv. His Honour erred in holding that the Second Defendant was not responsible for the defamation which appeared in its letterhead and executed by its sole directing mind. v. His Honour failed to give proper regard to the lesser standard of remoteness in relation to intentional torts in failing to award damages to the appellant for economic loss. vi. His Honour erred in failing to award economic loss. vii. His Honour erred in failing to give judgment for the First Plaintiff and subsequently deliver reasons prior to the First Plaintiff’s death. viii. His Honour erred in failing to give sufficient weight to the evidence of the witnesses Mitchell and O’Shaunessy with respect to the effect of the defamation on the second plaintiff’s promotion prospects. ix. His Honour erred in accepting the evidence of the First Defendant with regards to the reasons for his use of the Second Defendant’s letter head [sic] notwithstanding adverse credit findings against the first defendant and without having regard for the natural and probable consequences of the sole director signing a letter on the letter head [sic] of his company.

19. In furtherance of grounds (ii) and (iii) above, an application was made to us on the hearing of the appeal that “Judith Leslie Shiels executrix and grantee of probate of the Estate of Peter Lennox Shiels be joined as an Appellant to these proceedings”. The basis for that application was the submission that the learned Trial Judge had erred in his construction of s 122 of the Civil Law (Wrongs) Act. We reserved our decision on that application until after the hearing of the appeal.

20. Jeff Manny also appealed from the orders of the learned Trial Judge. Whilst the Notice of Appeal set out some five grounds of appeal, eventually only two were pursued by the first defendant: (i) His Honour ... erred in granting leave to [Warwick Shiels] to use in the proceedings below the letter to the Australian Federal Police that is the first matter complained in that: a. There was no application ... before his Honour for such leave; and/or b. There were no special circumstances to justify such leave (ii) His Honour erred in holding that the publication by [Jeff Manny] of the first matter complained of was not made on an occasion of absolute privilege.

21. It is convenient to consider the first defendant’s appeal first. First Defendant’s Appeal – Ground (i)

22. It is accepted by the parties that a party to litigation is not at liberty to use documents produced through the coercive processes of the courts except in the proceedings in which they are produced. The learned Trial Judge referred to the statement of this rule in Hearne v Street by Hayne, Heydon and Crennan JJ at 154–5; [96]: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (citations omitted)

23. His Honour rejected a preliminary submission by the plaintiffs that the letter in question did not attract the implied undertaking as the implied undertaking was limited to documents obtained from a party to the litigation, and in so doing referring to United States Surgical Corp v Hospital Products International Pty Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 7 May 1982), Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322 and Australian Prudential Regulation Authority v Rural and General Insurance Ltd (ACN 000 007 492) [2006] FCA 151. That determination is not the subject of appeal.

24. Dealing with the application for leave to use the letter in the proceedings before him, his Honour, referring to the decision of the plurality in Hearne v Street at 159–60; [107], and to Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 and Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878, accepted that leave should only be granted where there are special circumstances.

25. In determining whether there are special circumstances which justify dispensing with or modifying the plaintiff’s implied obligation with respect to the letter, his Honour referred to what Brennan J said in Esso Australia Resources Ltd v Plowman at 37: That dispensing power is not freely exercised, but it will be exercised when special circumstances appear. In the Federal Court, special circumstances have been held to exist where ‘there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present’. It is unnecessary to consider whether the dispensing power should be so broadly defined. (citations omitted)

26. His Honour also referred to the following passage from the judgment of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225: For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

27. Having thus set out the relevant principles, the learned Trial Judge considered the merits of the application (at [35]–[39]): Special Circumstances A significant aspect of the circumstances relied upon as being special is the fact that the document in issue is reasonably required for the purpose of doing justice between the parties in these proceedings. In this case, the document and its publication is the very foundation of the plaintiffs’ case. It may also be noted that the action is not being taken against the party producing the document but against the author of the document. The rationale underlying the rule was expressed by Mason CJ in Esso Resources Ltd v Plowman at 33 when he said: It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. The emphasis is on the prejudice to the party producing the document, not to other persons who may be affected by the production. In opposing the application for leave, the defendants referred to their second further amended defence, which was filed by leave given on 16 December 2008 and claimed that the letter was published on an occasion of absolute privilege. If that were so, there would be no cause to give leave to use the letter. In the alternative, it was put that: The nature of the document and the way in which the plaintiff became aware of its existence would both lead the court to decline to order discovery [sic]. I am aware of those circumstances but am satisfied that, unless the claim that the letter is absolute privileged is well founded, I should grant the leave sought.

28. The first defendant’s initial submission is that no occasion arose for his Honour to exercise his discretion to modify the first plaintiff’s implied undertaking, as no application was ever made to him by the plaintiffs, or at least the second plaintiff, to do so.

29. We see no merit in this submission. The whole purpose of removing the proceedings from the Magistrates Court was to determine whether leave should have been granted by Magistrate Madden modifying the first plaintiff’s obligations under the implied undertaking. It was plainly implicit in the actions of both plaintiffs in supporting the decision of Magistrate Madden before the learned Trial Judge that they were both seeking leave to modify the implied undertaking. The application for leave by Peter Shiels to Magistrate Madden was removed into the Supreme Court by order of the learned Trial Judge and, as such, that application was before him. As a matter of procedure, his Honour chose to set aside the order made by Magistrate Madden and rehear it. What his Honour was rehearing was an application for leave to modify the obligations of both plaintiffs under the implied undertaking attaching to the letter produced in the Magistrates Court proceedings. The original application before Magistrate Madden may have been made by the first plaintiff, but, by the time the matter was before his Honour, it was abundantly clear that both plaintiffs were seeking leave. There is no suggestion that Jeff Manny was misled into thinking the contrary.

30. The next submission on behalf of the first defendant with respect to this ground was that the learned Trial Judge was in error in concluding that there were special circumstances justifying leave being granted. In written submissions in support of this ground the first defendant made the following points: (a) that the decision in Hearne v Street narrowed the basis for the granting of leave from that propounded in earlier cases; (b) that his Honour was in error in regarding the centrality of the document in question to the plaintiffs’ case as being a factor in favour of granting leave; (c) that his Honour placed too little emphasis on other factors referred to by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, such as the attitude of the author of the document and prejudice to him; and (d) that his Honour should have considered the conduct of the first plaintiff in “surreptitiously” trying to “mend his position” without notice to the defendants or his Honour.

31. The first submission on behalf of the first defendant is that Springfield Nominees Pty Ltd v Bridgelands Securities Ltd was decided before the High Court decision in Hearne v Street, and the latter case makes it clear that the dispensing power is “less freely available” than Wilcox J considered it to be.

32. We do not accept this proposition. In Hearne v Street, the High Court did not consider the ambit of the curial power to dispense with or modify the implied undertaking. In that case, the decision of Springfield Nominees Pty Ltd v Bridgelands Securities Ltd is only referred to in a footnote as authority for the undertaking applying to “witness statements served pursuant to a judicial discretion” (at fn 100). Esso Australia Resources Ltd v Plowman is, similarly, referred to as an example of the undertaking applying to “documents inspected after discovery” (at fn 94) or “produced pursuant to a direction from an arbitrator” (at fn 98). The case is further cited (at 160; [107]) as authority for the very proposition the defendant now disputes; that the dispensing power may be exercised where special circumstances exist. The judgments in Hearne v Street say nothing about what may constitute special circumstances.

33. In the first defendant’s second submission (at [30](b) above), he submits that where a document the subject of leave to dispense with or modify the implied undertaking is itself to form the foundation of other proposed proceedings, then the centrality of the document is, in fact, a circumstance militating against the grant of leave. He submitted that “[i]t is not at all the policy of the law to facilitate the bringing of defamation proceedings based on documents obtained in this way.” He further suggested that there is a public interest in citizens not being inhibited in communicating information and suspicions to the Police by concerns that they may be exposed to action for defamation.

34. Of course, what is missing from this resort to the public interest is an acknowledgement that Jeff Manny, by reason of malice towards the plaintiffs, lied to the Police in his letter of 9 November 2004, accusing the plaintiffs of serious crimes. It is difficult to see how the undoubted public interest in encouraging citizens to provide information to the Police is in any way inhibited by measures that may deter the making of false and malicious complaints. It may equally be argued that there is a public interest in deterring such complaints, which distract Police from dealing with genuine complaints and are wasteful of scarce community resources. The legislature in this Territory has seen fit to criminalise the making of such complaints: see Crimes Act 1900 (ACT) s 396. In doing so, the legislature is presumed to have balanced the desirability of encouraging communication with, and complaints to, Police by citizens, against the public interest in deterring false and malicious complaints.

35. In large measure, this submission overlaps the second ground of appeal raised by the first defendant. As will be shown, the common law in Australia does not afford absolute privilege to communications to Police. Such communications are the subject of qualified privilege, which does not protect malicious representations.

36. In our opinion, the learned Trial Judge was correct in taking into account the centrality of the document in question to the plaintiffs’ case in determining the document was vital to achieving justice in the proceedings before him.

37. Turning to the next submission above (at [30](c)) in a case such as this it is understandable that the learned Trial Judge gave little weight to the attitude of Jeff Manny and any potential prejudice to him in determining to grant leave. Where, as here, there is an allegation of malice on the part of the author of the document, which is not apparently unsustainable, it would be surprising if factors such as the attitude of the author were to be given greater weight than achieving justice. Indeed, justice is precisely what the first defendant fears.

38. Issues of public policy will frequently be relevant to determining applications for leave. Sometimes, competing public interests may need to be balanced, as occurred in this case. The learned Trial Judge was obliged to balance the public interest in encouraging communications to Police against the public interest in ensuring that justice was done between the parties in the proceedings before him.

39. As to the last submission above (at [30](d)) any relevance of the manner in which Peter Shiels had approached the Magistrates Court was overtaken by the fact that the learned Trial Judge had set aside the Magistrate’s decision and then exercised the discretion afresh. We do not consider that his Honour fell into error in the exercise of his discretion on this issue. First Defendant’s Appeal – Ground (ii)

40. The learned Trial Judge, applying the High Court’s decision in Mann v O’Neill (1997) 191 CLR 204, rejected the first defendant’s submission that publication of the letter of 9 November 2004 to the Police was protected by absolute privilege. That case was a defamation action by Mr O’Neill, a Special Magistrate in this Territory, based upon a letter sent to the Attorney-General by Dr Mann, a medical practitioner, expressing his view that Mr O’Neill was unfit for duty and should be suspended.

41. The first defendant submits that Mann v O’Neill can be distinguished from the present case, and that there is no authority binding on this Court dictating that the first defendant’s letter to the Police was not the subject of absolute privilege. He submits that any suggestion to the contrary in Mann v O’Neill is dicta, and that this Court should prefer the contrary position expressed in English authorities such as Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, Mahon v Rahn (No 2) [2000] 1 WLR 2150 and Westcott v Westcott [2009] QB 407.

42. In Mann v O’Neill, Brennan CJ, Dawson, Toohey and Gaudron JJ said (at 213–14): It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’. Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. (citations omitted)

43. Considering the position of prosecuting authorities, a matter of particular relevance to this appeal, their Honours said (at 216): It is not necessary that statements to prosecuting authorities be absolutely privileged. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of the matter in a final or binding way, but to decide whether the circumstances warrant the institution of proceedings to ascertain the truth of the matter. Absolute privilege is not required for the effective discharge of that function. Nor is it required for complaints inviting investigation of a special magistrate’s ability to discharge his duties of office. (citations omitted)

44. Gummow and Kirby JJ, in separate judgments, concurred.

45. Mann v O’Neill was, as submitted by the first defendant, a case in which there was no judicial or curial process available at that time for the removal of a Special Magistrate. He is therefore correct in asserting that the material complained of in that case could not be regarded as the commencement of a process that could ultimately come before a court. However, those portions of the judgments of the High Court quoted above, although dicta, are a clear and relatively recent expression of opinion by the High Court on the issue before us. Like the learned Trial Judge, we believe we should follow it.

46. In this approach, we are strengthened by our view that the reasons expressed in the English authorities cited for extending absolute privilege to all statements made to prosecuting authorities, with respect, are not compelling. We find it difficult to see why there is any public interest in extending absolute privilege to the making of false and malicious statements simply because they are made to Police. In our respectful opinion, the High Court’s approach in Mann v O’Neill achieves a better balance between issues of free speech and the desirability of encouraging the proper administration of justice on the one hand, and the interests of individuals not to be the subject to malicious, untruthful and potentially damaging statements on the other.

47. Jeff Manny’s letter of 9 November 2004 was not subject to absolute privilege, but was made in circumstances that attract qualified privilege. The finding of the learned Trial Judge that Jeff Manny was motivated by malice in making the false and defamatory statements in that letter deprived him of the protection to which he would otherwise have been entitled. Conclusion

48. The appeal by Jeff Manny should be dismissed. The Second Plaintiff’s Appeal – Ground (i)

49. The first ground of appeal by Warwick Shiels is that the amount of damages awarded was manifestly inadequate. With respect to the first matter complained of, we agree. Jeff Manny wrote a letter to Warwick Shiels’ employer, the Australian Federal Police, accusing him of serious crimes involving sexual and other forms of abuse on young children. It was an allegation calculated to cause him as much distress and aggravation as possible. Jeff Manny did not resile from his allegations during the course of the trial. On this aspect, this ground of appeal must be upheld. We consider that, having regard to the nature of these allegations, the distribution of the letter, the nature of Warwick Shiels’ employment and comparative verdicts, the appropriate award in respect of the first matter complained of is $50 000.00, including aggravated compensatory damages. Bearing in mind the extremely limited publication, we are not persuaded that the damages awarded for the second matter complained of were manifestly inadequate and, so far as this issue is concerned, the appeal should not be upheld. Grounds (ii), (iii) and (vii)

50. Warwick Shiels’ second ground of appeal is that the learned Trial Judge erred in not making an award of damages in favour of the first plaintiff or his estate. This ground is inextricably linked with ground (iii), that his Honour erred in his interpretation of s 122 of the Civil Law (Wrongs) Act. These grounds are the basis of the application by Judith Leslie Shiels to be joined as an appellant in the appeal.

51. Section 122 provides: No cause of action for defamation of, or against, deceased persons A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to – (a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or (b) the publication of defamatory matter by a person who has died since publishing the matter.

52. Peter Shiels died after the hearing of the evidence in the proceedings, but before his Honour delivered his judgment and reasons. In the appeal it is asserted that Peter Shiels’ legal personal representative would not be asserting, continuing or enforcing his cause of action for nothing remained to be done by her except to await judgment.

53. We do not consider this argument to be sustainable. In our view, the effect of s 122 is to bring to an end any action for defamation which is on foot at the time of the death of either the plaintiff of the defendant. In interpreting s 122, we are entitled to take into account the heading to the section: see Legislation Act 2001 (ACT) s 126. To the extent that the body of the section may be capable of bearing the interpretation urged on behalf of the first plaintiff, the heading of the section suggests the contrary. The heading suggests that the death of either the publisher of defamatory material or the death of the subject of that material extinguishes the cause of action in defamation.

54. More importantly, we do not accept that in order to “continue” or “assert” a cause of action, some step or action on the part of a plaintiff must be necessary in the proceedings. The Macquarie Dictionary (Macquarie Dictionary Publishers, 5thed, 2009) defines “assert” and “continue” respectively as: Assert verb (t) 1. to state as true; affirm; declare: to assert that one is innocent 2. to maintain or defend (claims, rights etc). Continue verb (i) 1. to go forwards or onwards in any course of action; keep on. 2. to go on after suspension or interruption. 3. to last or endure. 4. to remain in a place; abide; stay. 5. to remain in a particular state or capacity. verb (t) 6. to go on with or persist in: to continue an action. 7. to extend from one point to another in space; prolong. 8. to carry on from the point of suspension or interruption: to continue a narrative. 9. to say in continuation. 10. to cause to last or endure; maintain or retain, as in a position. 11. to carry over, postpone or adjourn; keep pending, as a legal proceedings.

55. In our view, the legislature has used “assert” in the second of the two senses quoted: to maintain the claim. It has used “continue” in the sixth sense quoted: to go on with or persist in a cause of action. A plaintiff asserts, or continues, a cause of action even during the period when the court has reserved its judgment. A plaintiff may, if he or she chooses, settle the proceedings, discontinue them or apply to lead further evidence after judgment has been reserved. Where the plaintiff may potentially take action with respect to a cause of action during the period between trial and judgment he, she or it may be said, in a real sense, to be continuing the cause of action. During that period the plaintiff clearly continues to assert the cause of action.

56. Ground (vii) of the appeal is related, as it suggests that the learned Trial Judge was in error in not giving judgment before the death of Peter Shiels. It may have been desirable in view of Peter Shiels’ illness, for example, for his Honour to have given judgment earlier and published reasons subsequently, but his Honour’s failure to adopt this course can hardly be elevated to appealable error.

57. These grounds of appeal must be dismissed. In addition, the application to join Judith Leslie Shiels as an appellant must be refused. Grounds (iv) and (ix)

58. The letter of 9 November 2004 was written on letterhead of Jeff Manny Pty Ltd by Jeff Manny, who was the sole director and shareholder of the company. The plaintiffs pleaded a cause of action in defamation against the company. Jeff Manny’s evidence about this was that he wrote the letter on the company’s letterhead because that was what was available on his computer screen when he wrote the letter, and that in writing the latter he was not acting on behalf of the company.

59. The second plaintiff submits that, in the light of his Honour’s findings as to the credibility of Jeff Manny, that evidence should not have been accepted. Whilst it is true that his Honour found Jeff Manny to be an untruthful witness generally, it was open to his Honour to accept his evidence on this issue. There was some support for the proposition that Jeff Manny was indiscriminate in his use of letterhead; there was evidence that an earlier letter concerning the alleged assault was sent by him on the letterhead of a different company with which he was associated.

60. The second plaintiff submits that as Jeff Manny was the sole director of the company, “the alter ego doctrine, as referred to in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at paragraphs 110 and 175 and Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 343, is applicable.” With respect, we do not accept that these cases establish a principle of general application such that the second defendant must be found liable to the second plaintiff.

61. In rejecting the second plaintiff’s claim against the second defendant, the learned Trial Judge referred to the decision of Owen J in Brown v Marron [2001] WASC 100. The relevant passages of that case (at [96]–[100]) are as follows: Before I turn to the substantive defences, it will be convenient to deal with the cause of action against the Company. It proceeds on the basis that the letter was written on the letterhead of the Company and signed by the defendant in his capacity as its managing director. The defence is that the letter was written by the defendant solely in his personal capacity. In his evidence in chief the defendant said: Although the business name Marron Property Group was deregistered several years ago, I continue to use one or two letterheads for personal reasons. It was never intended that the letter was to be written on behalf of [the Company]. I wrote the letter in my own right and as a member of the club. I can see that I have signed my name above the words ‘Managing Director’ but I did so without the authority of the Company and without at any time intending that my letter be written on behalf of the Company. The use of the words ‘Managing Director’ when signing correspondence of this kind was done by me as a matter of course to identify my occupation rather than to suggest that I was writing on behalf of my company. Some of that is self serving and expresses conclusions. Nonetheless, its general thrust is clear and acceptable. The reference to “one or two letterheads” goes, I think, to explain how the paper on which the Objection Letter was written contains the ACN of the Company. The defendant said in cross-examination that some of the letterhead had the number on it and some of it did not. The defendant explained that the phrase “Managing Director” was a computer generated block that appeared on his correspondence. He was referred, in his evidence, to other examples where he had written letters to the Club using the same letterhead and signing over the block “Managing Director”. One such letter was to advise the Club that he had broken a toe and would not be playing golf for a while. That could hardly be described as company business. It seems to me to support the contention that the use of the letterhead was indiscriminate and did not necessarily signal a communication on behalf of the Company. Evidence was also given of correspondence from the Club to the defendant on matters that could only be described as personal to the defendant but which were addressed to him as the managing director of the Marron Property Group. The question of authority was raised but not pursued with much vigour. The defendant said that he and his wife were the directors of the Company. On some occasions he sought formal authority to act on behalf of the Company and on other occasions he did not. I have no reason to reject the defendant’s evidence that on this occasion he was not acting on behalf of the Company and that he did not have its authority to write the letter on its behalf. I am satisfied with the defendant’s explanation as to how the writing of the Objection Letter and the use of the Marron Property Group letterhead came about. The cause of action against the Company has not been made out.

62. The second plaintiff submits that the decision in Brown v Marron does not sit easily with other cases such as Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, where the employer of an insurance agent was held liable for defamatory statements made by the agent, despite the agent having been expressly instructed not to make such statements. With respect, we see no inconsistency in these decisions. In the latter case a majority of the Court held (at 47 per Gavan Duffy CJ, Starke and Rich JJ; at 50 per Dixon J) that there was clear evidence that the agent, when he made the defamatory remarks, was doing an act that was within the scope of his authority, in that he was using arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant. In the present case, the issue is not whether Jeff Manny could have acted on behalf of the company, as clearly he could, but whether he did so when making what was clearly a personal complaint not at all related to the business or affairs of the company.

63. It was open to his Honour to accept the evidence of Jeff Manny on this issue. That evidence was, to some extent, supported by other evidence about Jeff Manny’s indiscriminate use of company letterhead. It was open to his Honour to find that in writing and publishing the letter of 9 November 2004, Jeff Manny was acting in a personal capacity and not in his capacity as a director of the company.

64. This ground of appeal must be dismissed. Grounds (v), (vii) and (viii)

65. These grounds are directed toward the refusal of the learned Trial Judge to award damages to Warwick Shiels for economic loss. His submissions are largely directed towards the law concerning standards of remoteness of damage for intentional torts, and the relationship between causation and remoteness of damage in tort.

66. In the present case it is unnecessary to consider these issues. Warwick Shiels’ claim is that because of the publication of the first matter complained of, he lost an opportunity to transfer to the Professional Standards Section in the Australian Federal Police, a move that was likely to have enhanced his career prospects in the Police. The unchallenged evidence of Superintendent O’Shaughnessy, however, was that what prevented Warwick Shiels from taking up the position in Professional Standards was the fact that there were complaints outstanding against him at that time, and not the content of those complaints. The complaints to which Superintendent O’Shaughnessy referred were set out in Jeff Manny’s letters of 1 September 2004 and 9 November 2004. There were two complaints: the allegation of assault made against both Peter Shiels and Warwick Shiels and the defamatory material being the first matter complained of.

67. The evidence establishes that both complaints were finalised in favour of the plaintiffs, but the complaint comprising the defamatory material was, in fact, finalised before the complaint concerning the alleged assault. As such, even if the defamatory statements had not been made in the letter, Warwick Shiels would not have been offered the transfer to Professional Standards because of the assault complaint. Warwick Shiels, of course, does not allege any cause of action in these proceedings based on the assault complaint.

68. It appears that, after the resolution of the complaints in his favour, Warwick Shiels did not seek a transfer to Professional Standards despite positions being available in that area. There was no evidence before the learned Trial Judge that the making of Jeff Manny’s defamatory statements continued to be a matter which is adverted to by Warwick Shiels’ superiors in considering applications for promotion or transfer.

69. His Honour was correct to find that the evidence did not establish a right to damages for economic loss. This ground must also be dismissed. Conclusion and Orders

70. We shall make orders in each appeal to give effect to these reasons. The parties may file written submissions as to appropriate costs orders within 14 days. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 21 May 2012

[For brevity, parties’ legal representatives are listed only once below, according to their respective roles in ACTCA 24 of 2010:]

Counsel for the Appellant: Dr R O’Hair

Solicitor for the Appellant: United Legal

Counsel for the Respondents: Mr CJ Dibb

Solicitor for the Respondents: In Person

Date of hearing: 9 November 2011

Date of judgment: 21 May 2012

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