Wodrow v Commonwealth of Australia C17/1993 [1994] HCATrans 66 (12 October 1994)

IN THE HIGH COURT OF AUSTRALIA

Registry No C17 of 1993

B e t w e e n -

WILLIAM WODROW

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special

leave to appeal

MASON CJ

DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1994, AT 11.48 AM

Copyright in the High Court of Australia

MR W. WODROW: Your Honour, I appear as the applicant in person.

MR R.E. WILLIAMS, QC: If it please the Court, I appear with MS E.J. GODTSCHALK for the respondent. (instructed by the Australian Government Solicitor)

MASON CJ: Mr Wodrow, you realise you have 20 minutes within which to present your application. An orange or yellow light will come on when you have five minutes remaining. That will be followed at the expiration of the five minutes by a red light.

MR WODROW: Thank you, Your Honour. Your Honours, I dispute the claim of the respondent that my submission only raises issues of fact and not issues of law; issues such as bias or mere preference by an appellate tribunal for a different result; irrelevant considerations; the use of extraneous material and an erroneous view of the facts; the application of improper legal tests to the facts or improper purpose, and the misleading of a court of law are not errors of fact, I would submit, but fundamentally errors of law that properly attract judicial review by a superior court of record such as the High Court of Australia.

Firstly, Your Honours, with the profoundest of respect to the Full Court of the Federal Court, Their Honours Gallop, Spender and Ryan have made a very fundamental error in that they have applied to me in reaching their judgment a military code of conduct, namely, a military standard of discipline and a standard of conduct and behaviour expected of a person operating in a military theatre.

I take Your Honours to the application book, in particular pages 103 and 145. The reasons for the decision are contained in these passages and represent the ratio of the decision by the Full Federal Court. I take the Court to line 11 at page 103 -

It seems to us that in a service founded on discipline it is entirely appropriate for a section leader who is dissatisfied with the section's performance to express his or her dissatisfaction and exhort serving officers, other ranks and ancillary staff alike to improve that performance.

The minute by Commander Ingram, I take you to, at line 30:

The minute is in disciplinarian terms and makes appropriate reference by way of introduction to military folklore. Those who serve in the Defence Force or in the Department of Defence must expect, on occasions, to be reminded of their duties in stern unequivocal terms. Those who are unduly sensitive to plain-spoken criticism.....are not well-suited to employment in the defence of the nation whether in times of war or peace.

I would submit that that would sound like some provocateur that was employed within the department and the plaintiff fell by implication into that category. At the top of page 145, Your Honours:

the plaintiff did not comply -

with an instruction which carries from 144:

but challenged the authority of his immediate superiors and the normal chain of command and supervision in a disciplined service.

I take you down to point 15:

Any other course would impair the effective functioning of a service founded on discipline. The defendant had a responsibility.....to maintain discipline and, when confronted with petulant, insubordinate behaviour by one of its officers, to do so by reminding the officer of his liability to disciplinary action.

For these reasons we do not think that any duty of care arose on account of foreseeability of damage -

I go down to 36:

Moreover, we regard the defendant's actions, through its officers, as entirely reasonable.

We also turn, Your Honours, to 126 which is also at the core of the Federal Court findings - 126 and 128 - where the introduction here - at line 11 at 126:

Central to the problem is the fact, as His Honour found, that the plaintiff had an unusual personality.

Down to 20: "physical abnormal" is exposed. Their Honours took a relationship by Levi v Colgate Palmolive Pty Limited and came to the conclusion there was a psychiatric abnormality that placed the plaintiff in the bracket of not being in the interest to the knowledge of the respondent. Page 128, the finding of abnormality, at the page 128:

there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality: only if a defendant knew or ought to have known of the existence of the plaintiff's infirmity had he a duty to avoid harm to him -

I submit, Your Honours, if we turn to page 71 just to see what His Honour, the primary trial judge had to say. The learned trial judge found, at point 12:

the plaintiff does not suffer and has never suffered from mental illness. He is not and was not paranoid or deluded.

The case for the respondent, the matters that Their Honours in the Full Federal Court came to the finding on, rest upon the evidence that would support such an assertion. I submit, from my submission, and I put a detailed submission, that there was no evidence to support a finding of abnormality. There was no evidence to come to the conclusion that there was no duty of care on the grounds of misconduct and discipline of a military type were involved. I would further submit that since no medical reports were discovered, that these were a precondition to the terms of conditions of employment and these were withheld from discovery, that the court could not, itself, be informed as to the state of the plaintiff's health when he was taken on as part of the precondition of his employment that he would meet the respondent's medical practitioner's reports. I do not know why they have never been discovered for the court but I would submit that they are very relevant to any finding that the lower courts would come to. It can only be supposition and speculation that that would be the case otherwise. I further submit that by necessary implication, since the applicant fulfilled all of the requirements of the contract, he was, at the material time, acceptable in health and the respondent knew everything about him.

Your Honours, I wish to emphasise that there are a number of issues that are unique here that attract the reason why special leave should be granted. I would like to turn, Your Honours, to the case of Roe v The Commonwealth, 150 CLR. The points that I am bringing before you, Your Honours, and I had simplified the questions I placed before you - I submit that they are a bit more convoluted than they ought to be - the duty of care owed by a military officer as a supervisor to a civilian professional officer in peace time is one, and number 3 in my questions before you is related to that question, and it is whether a civilian professional bound by common law duty of care could plead a defence of authorisation, a Nuremburg type defence, for liability and negligence, if he subjugates the duty to military orders and discipline in peace time, and I wish to bring to your attention, just within the time I have got, the international ramifications from a practical experience point of view of just how that would affect the law as it stands here.

The other matter is a matter never before considered by this honourable Court, and that is the matter of the ulterior purpose and motive of the respondent, in subordinating, threatening and attempting to compromise the defence security classification of a loyal defence employee, a witness to a parliamentary committee, in breach of section 49 of the Constitution, and I draw your attention, Your Honours, to your finding in principle that you found in R V Toohey: ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, where you came to the conclusion there that it was proper in certain instances to look at the ulterior purpose or the improper purpose or the motive of the Crown and you granted mandamus in that particular case.

The issue at Groves v The Commonwealth presents some conundrums, particularly for a civilian, that needs to be addressed. No man can serve two masters. If this Court binds a professional aeronautical engineer like myself, Your Honours would be aware of the implications of flying on aeroplanes, in knowing the responsibility that somebody like myself in his profession exercises to ensure that you arrive at your destination safely. That cannot be over emphasised in the terms of the context of whether they are military people, there is no difference to the professional whether there are servicemen involved or civilians - the same due care and exercise of skill and competence is required of that professional, as Your Honours have said in Voli v Inglewood Shire Council.

Now at Groves, the page in particular that I wanted to draw Your Honour's attention to is page 134, where this conundrum-type question was addressed. In this instance you were considering a serviceman's responsibility to a serviceman, and the questions would be looked at as to military law and the negligence component within military law, and whether the heads that would apply to a civilian situation would apply there. You came to the conclusion that if a civilian was in the position of the offender, then the military person who was injured would have a course towards the law to a remedy available by holding that individual responsible. But you looked at a peacetime situation - - -

DEANE J: Mr Wodrow, could I divert you for one moment. I follow the point you make in relation to page 103 about the distinction between a public servant employed in the Department of Defence and a soldier employed in the defence of the nation, whether in times of war or peace, but can you identify how the approach of what was to be expected of someone in the defence of the nation in times of war or peace carried through to the decision in this case? Do you follow the question I am asking you?

MR WODROW: I am trying to grapple with it, Your Honour.

DEANE J: There is a difference in a judgment between a broad statement which is made and which does not really carry forward into the result and a statement which does carry forward into the result. What I was asking you is: in the judgment, is there anything that makes clear that this military approach carried forward into the result in so far as Their Honours overruled Chief Justice Miles' decision?

MR WODROW: I would submit, Your Honour, that the trial judge himself never canvassed these areas at all.

DEANE J: He obviously did not see things in quite the military aspect that the Full Court saw them.

MR WODROW: No.

DEANE J: But I was just wondering whether you could identify anywhere where the different approach can be seen to have been directly responsible for the result.

MR WODROW: Your Honours, there are a number of points, in my submission, that address that matter. I have submitted that improper tests were applied in relation to what brought on the injury in any event, and there are differences from the judgments that one can see from that. The issue in this respect is that when you are placed in a situation where the whole issues have been trivialised before the courts - if I submit that, Your Honour. They have been trivialised by the fact that the courts have not informed themselves as according to what Lord Denning has said in Baldwin, as I said in my submission. But what the issues are that relate to a professional placed in a position where unqualified people are making judgments about his competence, judgments about his discipline, and it has been reduced to conflicts and clashes of personality when it is clashes of culture. That has been dealt with - managing professionals by the Harvard School of Management - I am not really.....to that, Your Honour, but - - -

DEANE J: Do not let me divert you any further because I do not want to deprive you of your time.

MR WODROW: I wanted, Your Honour, to bring the import of what I am trying to say by way of practical example. This relates to what this could mean in international law in terms of the impact of this decision, placing a professional in a position where he is dealt with for being insubordinate, he is criticised as being incompetent by people who are not qualified, who are unable to understand the reasoning behind the man. What appears to be questions of clashes of personality are in fact not that at all. There are fundamental issues involved and I would like to bring - if I could hand these up, please, to Your Honours. I just want to refer Your Honours to one page on the facts that were tabled, Notice to Admit Facts that were tabled. These documents are appropriately marked inside.

I will take you to an issue there in relation, Your Honours, to page 14 and this relates to what the implication of this decision might have. This issue relates to a situation where I was employed as a civilian acting as the principal aeronautical engineer for the Royal Australian Navy, and it is 118 and 119 on page 14 I would like to draw your attention to.

We were asked to manufacture some arrestor hooks for the American fleet at sea, and some members of the Navy decided that they would alter the material and that they would ask for the specifications and the drawings to be changed so that they could be receipted into stores and issued as being fit for the purpose they were designed and manufactured for, and I had the responsibility as the officer responsible at that time, acting as the principal aeronautical engineer, to see if whether these 400 tension bars should be placed on foreign aeroplanes or on our aeroplanes.

The consequences were, Your Honour, they were the wrong material; the risks were horrendous if we had allowed them to be supplied to the American fleet. Now, if I had signed them and allowed them to be issued to the American fleet at sea and there was an aircraft carrier accident and there were aeroplanes crashing into the ship, coming off the sea, there would be an international incident. An international law would come into play; it would be outside the jurisdiction of this country, and as a professional I would still be responsible, and I draw Your Honours to the Nuremburg principles in this little pamphlet which I have photocopied to see that there Principle IV states that:

The fact that a person acted pursuant to order of his government or of a superior does not free him from responsibility under international law. It may, however, be considered in mitigation of punishment, if justice so requires.

Now, the damage we could have inflicted on the American fleet, had we allowed them to be supplied with defective arrestor hooks, lifelines, umbilical cords, to the attachment to such expensive equipment would not only hold this nation up to ridicule but it would bring us in to an international arena where questions that are before Your Honours as to what responsibility, how do you judge a professional, how do you make him accountable, how do you discipline him, would come into play, and these aircraft hooks could have achieved much more damage than anything that Saddam Hussein with his batteries of SCUD missiles could have placed on the Americans, and we were an ally.

Now, I refuse to approve them. Then, I was not dealt with for insubordination, and this happened in 1975, and here I am placed in a situation with the Defence Department where I am brought into conflict over a contract to the frigates, and I am condemned without a proper hearing. There is no mention in the Federal Court judgment that I am under the proper provisions of the Public Service Act, that I should have been judged with proper fair procedures with natural justice, and I am overworked, I am under-resourced, evidence is kept from the court - which I have got copies of - that misleads His Honour the trial judge as to the true position, that they are asking me to do a job in two weeks that four men would do in two years.

I then get placed in another situation where all of this comes to the Parliament's attention, and all of the issues that relate to what happened to me from the breakdown in relationship, Your Honour, are all related to contractual arrangements with overseas countries. All of the matters that I have dealt with, with the trading sanctions, with the frigates, with the Navy technical services report I did, and the frigate contract are all related to that issue. Now, the Parliament says that where I have been suborned,..... gains to the courts, Your Honour, that no judge can properly overrule the finding of the Parliament that you are entitled. It is a contempt, it is a breach of law - - -

MASON CJ: Your time has expired, Mr Woodrow.

MR WODROW: As it pleases the Court, Your Honour.

MASON CJ: Mr Williams, what do you say about the submission that the Full Court of the Federal Court approached this matter on the basis that the applicant was really a member of the disciplined service, meaning, thereby, that he was to be treated as if he were a member of the Defence Forces with all, as it were, the cultural consequences that flow from the discipline of serving in such a force?

MR WILLIAMS: Your Honour, it certainly could not be said of Mr Justice Miles at the trial that there was any question of that at all.

MASON CJ: What about the Full Court of the Federal Court, bottom of page 144, but principally 145, in the context of their finding that Mr Wall acted reasonably?

MR WILLIAMS: Yes. The challenge on the cross-appeal in the Full Court as to the question as to whether or not it was foreseeable that the actions by Mr Wall when issuing two minutes would have brought about the consequences to the applicant that they did, His Honour, the trial judge, found - I am trying to deflect from Your Honour's question - for the reasons that appear, that on the evidence one would have expected that Mr Wall ought to have been alerted to that.

The Full Court thought otherwise, that is that there was no evidence to establish a foreseeable risk of injury in doing what he did. But nowhere in the Full Court, in answer directly to Your Honour the Chief Justice's question, does the court at any stage apply a test which would suggest that Mr Wodrow should have been treated other than a civilian.

DEANE J: What about at page 103, beginning at line 31?

MR WILLIAMS: Your Honour, in the first place the Ingram minute and the facts surrounding the frigate period, 1976-1977, and the allegations particularly in relation to then Captain Berlyn, were found to have no substance by the trial judge. It is true that Their Honours say, as they do at that passage Your Honour directs me to, but nothing follows from the fact that those observations are made because Mr Wodrow made various allegations about the conduct of the respondent during this period, which includes the issuing of the Ingram minute, all of which findings were rejected as a question of fact.

So whilst that appears to be there, nothing flows from it because the complaints were to deal with intentional harm during this period and conspiracy and the like and had to do with certain conduct by Captain Berlyn, all of which was rejected on the facts by the trial judge.

Now, I see the passage there that Your Honour points me to, but that is the answer. Nothing flows from it.

DEANE J: Except that it would be relevant, and particularly in terms of so much of their decision as overturned the decision of the trial judge, if Their Honours approached the basis that public servants in the Department of Defence were, in terms of foreseeability and duty of care, to be treated like serving members of the Defence Forces in the defence of the nation whether in time of war or peace.

MR WILLIAMS: I would not want to dispute that, Your Honour, with respect.

DEANE J: It borders on the absurd to suggest that a clerk in the Department of Defence in Canberra has somehow subjected himself or herself to military discipline.

MR WILLIAMS: I would not wish to quibble with what Your Honour puts to me, but what happened was on the cross-appeal the court was directed in the first instance to two things: first of all, to the facts of the minute, and I will not weary Your Honours with the facts, but the plaintiff had relied upon the issuing of two minutes, and on the question before the Full Court as to whether or not foreseeability had been established, that is, as to whether or not that conduct was likely to cause any injury to the plaintiff, what was argued before the Full Court was that in relying upon the two minutes His Honour was in error in that one of the two minutes had, in fact, not been brought to the attention of the plaintiff at all; or if at all, not until after 1980; or if the plaintiff had been wrong in the witness-box and he had seen it, it had obviously had no effect on him.

So there were questions of fact substantially decided in the respondent's favour before the Full Court to the effect that at least one half of the damage caused by the minutes had not, in fact, ever been before the applicant. That aspect of the case fell with the facts.

The other aspect on the question of foreseeability was this: that when one analysed what the employer knew about Mr Wodrow, not what in fact was the case which emerged when one looks at the clinical notes of, for example, his general practitioner, but what one actually knew about him in the periods 1977 to 1979, there was precious little, almost nothing, known about any propensity to react outside of the normal and, indeed - and again I will not go into the question of facts as Your Honours asked me to - what was known about him was that by 1979 he was functioning extremely well in the directorate of education.

There was very little in the way of material before the court, contrary to the view that the trial judge took, as to the extent to which the respondent through its servants ought to have known that Mr Wodrow was likely to react outside of the normal.

Those facts, resolved at the trial and then explored on appeal, simply do not touch on the question of whether or not he ought to have been treated differently simply because - that is, differently to the way a public servant would normally expect to be treated, and ought be treated - he was in the Department of Defence. It did not arise as a fact. I appreciate there are some comments in the judgment of the Full Court which touch on that issue but where allegations - - -

DEANE J: And would seem to bring it in. If you look at 144 to 145, there is that paragraph that you have been referred to that spans the two and it is then followed, "For these reasons", and then come the findings. I fully appreciate the force of what you say, but one must address the question whether that approach has, as it were, coloured the whole attitude of the court which might mean that it went through to the result. That is what I am asking you about.

MR WILLIAMS: Yes. Of course, at that point Their Honours are dealing with the reasonableness of the conduct. Mr Justice Miles held - the Chief Justice in the ACT Supreme Court - at first instance, was not actually critical of the reasonableness of the first part of the response, rather, some language used at the end which His Honour said, "The defendant ought to have known the plaintiff's tender susceptibilities might have reacted to", to pick up a quote from His Honour's judgment, His Honour was not so much critical of the defendant's approach to the plaintiff below, rather His Honour was critical of the fact that, in the circumstances, the defendant ought to have foreseen that in even the most mild behaviour, reasonable, with ordinary persons, might, in this particular instance, have brought about damage.

I suppose what I am endeavouring to say to Your Honour by way of answer to Your Honour is this, that those observations, whilst they do appear in these passages in the Full Court Your Honour has directed my attention to, they did not colour and they did not affect the question of foreseeability, as it was determined in the Full Court, and they really do not touch upon reasonableness on the facts. If the Court pleases.

MASON CJ: Thank you, Mr Williams. Mr Wodrow, do you wish to say anything in reply to the arguments advanced by Mr Williams?

MR WODROW: I would like to clarify a point, Your Honour. The Court was misled about what the primary judge at first instance found in relation to Mr Wall. The primary judge himself - if I can take you to page 43 - he spoke with the full knowledge of Mr Wall being acquainted with things that the applicant was never made aware of at the material time about not letting them get away with conduct of the past, to watch them. His Honour makes a comment at point 22, that the plaintiff not be allowed to get away with conduct - this was written in a minute to the new supervisors. His Honour says at 25:

What appears ominous in retrospect is the suggestion that the new Divisional Head be asked to ensure that the plaintiff conform with his obligations -

In my submission, Your Honours, at page 4, I dealt quite thoroughly with the fact that there are other references where His Honour says, "All of these preceding events were never cured." They were carried into the future and he could not absolve Mr Wall of keeping an eye and not letting me get away with something that I am not aware about. That word "ominous": "doting on menacing aspect, foreboding evil, marked by evil omens, disastrous". His Honour used that for some reason.

The other point, Your Honours, is that the Full Court of the Federal Court missed out of the judgment the crucial point upon which the learned trial judge made his finding. It was about Mr Wall and his minute. He took the evidence - he called for Mr Wall on numerous occasions and there was no mystery to the court where Mr Wall was. He was in Mr Williams' chambers during the time of the trial. So had they wanted to bring him in, when His Honour was keeping asking where he was, they could have brought him in. His Honour took note of a handwritten signed comment, at the bottom of Mr Wall's minute:

Mr Wodrow has read a copy of this document in my office this morning.

That was sent to Brigadier Cohen who came as a witness and confirmed that that writing was Mr Wall's and he had discussed about it with Mr Wall. I put it and submit, Your Honours, that the learned trial judge was entitled to come a conclusion about that, that he accepted the evidence of the plaintiff, myself, at the time, as being a truthful occurrence of the events. So that if you leave that out, of course Their Honours are going - they do not reproduce that when they reproduce the minute and I say that that was unfair. Your Honours, I see my time has expired.

MASON CJ: Thank you, Mr Wodrow. The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 12.26 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.45 PM:

MASON CJ: Notwithstanding that we consider that there is force in the submission that the Full Court of the Federal Court did not draw a sufficient distinction between an employee in the Department of Defence and an officer in the Defence Forces, we are of the opinion that an appeal in this case would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. In reaching this conclusion we have had particular regard to: (1), the factual findings of the trial judge; and (2), in so far as the decision of the Full Court of the Federal Court overturned the verdict of the trial judge, the reasons of that court directed to the question of foreseeability. Accordingly, the application for special leave to appeal is refused.

MR WILLIAMS: I am instructed to ask for costs, Your Honour.

MASON CJ: Do you say anything about that, Mr Wodrow?

MR WODROW: Well, what can I say, Your Honour. I feel that it has been totally misunderstood. One is left in the lap of the gods when you come to the courts. One looks for justice and I do not feel justice has been done.

MASON CJ: Mr Wodrow, we are not going to hear complaints about our decision, we are concerned only with whether or not an order for costs should be made.

MR WODROW: If the Court pleases.

MASON CJ: The application for special leave to appeal is refused with costs.

AT 12.47 PM THE MATTER WAS ADJOURNED SINE DIE