The reference to DPC was of course a reference to the Department of Premier and Cabinet.
90 Looking first at the second purpose, the findings were to "constitute the findings of fact" in relation to the handling, by the Department of Premier and Cabinet, of Ms Sanger's complaint. The letter does not spell out what were the implications of this, and the statement of agreed facts in this case does not elaborate. We were not referred in submissions to any relevant statutory provisions. However, this statement of the second purpose does confirm that the first defendant's findings of fact were not to be treated, by the Department of Premier and Cabinet at least, as merely advisory or tentative.
91 Turning to the first purpose, although it is said that the findings "will inform the Premier's decisions as to whether [the plaintiff] has told him the truth", there is nothing to suggest that the Premier's decisions about this would be informed by anything else, particularly when the findings were, in accordance with the second purpose, to be findings of fact for the handling of Ms Sanger's complaint by the Department.
92 Accordingly, and again having regard to the plaintiff's lack of any remedy against the State of New South Wales, in my opinion the plaintiff was highly vulnerable.
93 As regards reliance, in my opinion reliance by the plaintiff on the first defendant was not a significant feature of the relationship. The agreed statement of facts, which is accepted to constitute the facts relevant to the issues before this Court, do not suggest any reliance, in the sense of any action or inaction by the plaintiff because of reliance on the first defendant, other than ordinary co-operation in the investigation.
94 As regards assumption of responsibility, it is plain that the first defendant did assume a responsibility to investigate and to make findings of fact, which in all the circumstances was a substantial responsibility with potentially devastating consequences for the plaintiff or Ms Sanger, or both of them.
95 As regards control, the whole conduct of the investigation was in the control of the first defendant, and in that regard she was not under any constraints except those arising from her obligations undertaken to the Department by her acceptance of the task.
96 If the matter ended there, I would have been inclined to find that the relationship between the first defendant and the plaintiff was such as to give rise to a duty of care: cf Chapman v Luminis (No 4) [2001] FCA 1106; (2001) 123 FCR 62, at [243]. However, the two other considerations referred to by Allsop ACJ in Spearpoint are relevant; and in my opinion one of them is sufficient in this case to preclude the existence of a duty of care.
97 This consideration is the conformity of a duty of care with other duties or legal obligations owed by the first defendant. In my opinion, in the circumstances of her engagement, the first defendant did have an obligation to investigate and to make findings conscientiously, and not to be inhibited in doing so because of concerns about possible repercussions against herself from either the plaintiff or Ms Sanger.
98 I do not suggest that the mere existence of a contractual obligation of that kind will necessarily or even ordinarily displace a duty of care that might otherwise exist. In this case, however, the task given to the first defendant was one of some public significance. The honesty of Ministers and the confidence of the Premier and Parliament in Ministers is a matter of public importance; and when the Premier and his Department chose to inquire into something bearing on these matters by engaging a senior barrister to investigate allegations against a Minister, there was, in my opinion, a significant public interest in having that investigation conducted conscientiously and without any inhibitory effect from concern about possible liability to persons whose conduct was being investigated.
99 It could be contended that the exercise of reasonable skill and care not to cause harm by making incorrect findings is by no means inconsistent with any obligation the first defendant had to the Premier and the Department, but rather is precisely what that obligation required. However, in my opinion, for the first defendant to work under any threat of possible claims of negligence from the plaintiff or Ms Sanger, in the event of findings adverse to one or other of them, would be undesirably inhibiting.
100 For one thing, a person in the first defendant's position would understand that, if the law permits claims on the basis of negligence, such claims could be made and could cause at least inconvenience and expense, even if they were unsuccessful; and also that such claims could possibly succeed, even if reasonable skill and care has in fact been exercised. The standard of proof in relation to such claims would merely be on the balance of probabilities; so that the possibility of a decision that there has been negligence, when in fact there has not, is not a negligible or illusory possibility.
101 Thus, in my opinion, references such as that in Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63 to a "detrimentally defensive frame of mind" are justified; and see also Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1238; Chapman at [264]; and State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 at [115]. And in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [62], it was said in the joint judgment of Gleeson CJ and Gaudron, McHugh, Hayne and Callinan JJ, in relation to the responsibilities of the respondents in that case to investigate and report upon allegations that children had suffered and were under threat of severe harm, that those functions "require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences to people in the position of the appellants or legal liabilities to such persons".
102 My conclusion that a duty of care is excluded has some confirmation also from the final consideration referred to by Allsop P, namely coherence with other legal principles.
103 In Sullivan at [54], there is the following statement in the joint judgment:
[54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.
104 I do not read that passage as altogether ruling out a duty of care in all cases where the law of defamation might apply. In a footnote to that paragraph, the joint judgment referred, without expressing either approval or disapproval, to Spring v Guardian Assurance Plc [1995] 2 AC 296, in which the House of Lords, by a four/one majority, held that an employer giving a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation. The majority considered that the fact that, in an action for defamation based on an inaccurate reference, the employer would have a defence of qualified privilege, did not bar an action in negligence where no such defence was available. In my opinion, while it is by no means clear that this case would be followed in Australia, it is at least arguable that, because defamation applies irrespective of any particular relationship between a defendant and a plaintiff and irrespective of any particular vulnerability of a plaintiff to injury by defamatory assertions by a defendant, defamation does not necessarily cover the field and exclude a duty of care in cases where there is some particular relationship created by assumption of responsibility by a defendant and where the plaintiff has particular vulnerability to injury from defamatory assertions by the defendant.
105 For that reason, I regard the duty of the first defendant to investigate and make findings conscientiously and without inhibition from concerns about possible repercussions to herself as the principal and effective reason for not finding a duty of care in this case.
106 It is also put for the defendants that there would be lack of coherence in the law in recognising a duty of care in this case, by reason of intersection with the law concerning misfeasance of public office. I accept that the applicability of that tort could be a ground for excluding a duty of care: see Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329. However, it seems clear that the tort cannot apply to a person who does not himself or herself hold a public office, but is merely contracted by a public official to carry out some task: Leerdam v Noori [2009] NSWCA 90.
107 For those reasons, I would answer question (3) No.