Commonwealth of Australia v Monie & Ors [2008] HCATrans 183 (16 May 2008)

Last Updated: 21 May 2008

[2008] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S505 of 2007

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

PETER JOHN MONIE

First Respondent

JENNIFER MONIE

Second Respondent

SAMUEL MONIE

Third Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2008, AT 9.34 AM

Copyright in the High Court of Australia

MR R.S. McILWAINE, SC: May it please the Court, I appear with MR B.J. SKINNER for the applicant. (instructed by Australian Government Solicitor)

MR D.F. ROFE, QC: If your Honours please, I appear with my learned friend, MR A.J. TUDEHOPE, for the respondents. (instructed by SK & Associates)

GLEESON CJ: Yes, Mr McIlwaine.

MR McILWAINE: Your Honours, this application raises two special leave questions. The first is whether the scope of the duty imposed upon an entity administering a Commonwealth wage subsidy program should extend to prevent that entity from referring an ex-offender for an interview for employment by a potential employer unless the ex-offender consents to his or her criminal record being disclosed to the potential employer at the time of referral. Your Honours, below it was held that the duty did so extend and that it was a breach to refer for interview unless the ex-offender’s criminal record was disclosed. Your Honours, there is common ground that the privacy legislation - - -

GLEESON CJ: That would depend on the facts and circumstances of an individual case, would it not?

MR McILWAINE: Well in this case, your Honour, the holding below was that it was a breach to refer if the ex-offender did not consent and therefore there was no disclosure of the criminal record.

GLEESON CJ: It would depend on what the criminal record was, would it not? You could have a criminal record for excessive speeding.

MR McILWAINE: That is the whole point of why we are here. That is exactly right, you could have a criminal record which was completely irrelevant to the employment the ex-offender was seeking, but the holding below prevents, in our submission, the entity administering this job subsidy program or wage subsidy program from referring for an interview unless there is consent by the ex-offender.

GLEESON CJ: Could I refer you to paragraph 62 on pages 140 and 141 in the judgment of Justice Campbell. Is that an accurate statement about the grounds of appeal?

MR McILWAINE: Your Honour, we have to go further because we then get to the cases abandoned point.

GLEESON CJ: I was inviting you to comment on that, because a possible point of view is that the obstacle that you have to overcome in this application is that the decision in this case was highly fact specific.

MR McILWAINE: The decision in this case was fact specific, but the holding that arises from the decision below has very wide ramifications.

GLEESON CJ: Justice Campbell said:

All the grounds of cross-appeal relating to the question of breach of duty of care depend upon the Commonwealth successfully challenging –

a certain finding of fact. And he says that challenge was not successful.

MR McILWAINE: That is right. But that has to be seen within the context of the following paragraphs, 63 onwards and, in particular, 66 where on behalf of the Commonwealth, it was:

submitted that, in light of the cases that the plaintiffs had abandoned by deleting these allegations, it had not been open to the trial judge to find that by referring Mr Winsor to Thornleigh & Co for interview without any disclosure of his criminal record, the defendant was in breach of its duty of care.

One needs to go to the case that was abandoned in order to understand the context in which we complain about the judgment. Your Honours, the case abandoned involves the following propositions. The respondent at trial abandoned any case that the Commonwealth had a duty in selecting and or recommending jobseekers who were suitable for employment, also abandoned any case that the Commonwealth had a duty to warn of any material risks associated with employing Mr Winsor, also abandoned the case that there was a failure to disclose that Mr Winsor had a criminal record and a failure to warn that Mr Winsor had a criminal record. All of that was taken out of the case as presented by the plaintiffs, leaving the case as articulated by Justice Campbell at page 118, paragraph 15:

The trial judge upheld the plaintiffs’ contention that the CES was under a duty not to refer Winsor to Thornleigh & Co as suitable for interview, or else to refer him only after informing Thornleigh & Co, with Winsor’s consent, what it knew about his criminal history.

It was based upon that recitation of what the trial judge did that Justice Campbell then makes the statement he does in paragraph 62, but that ignores the abandoned case which I have just referred your Honours to. So that what we are left now is a holding below that the CES – which was the entity that administered this program up until 1998, since then it was outsourced and there have been various organisations who administer the same program – are prevented from referring ex-offenders for interview by potential employers unless the ex-offender, irrespective of what the offences might be, consent to their criminal record being disclosed.

It is that holding which we challenge and which we seek to reverse so that the entities currently administering this scheme know the parameters within which they can operate. At the moment the view taken by the various agencies is that, if the ex-offender has a criminal record, irrespective of what it is, they cannot refer for an interview unless that ex-offender consents to the record being disclosed. You can imagine the situation where a person has a record like Mr Winsor did of some assaults, and these were assaults, as we pointed out in our written submissions, were not assaults using weapons, they were assaults using his fist and on another case of throwing an egg. The job that he was referred to was a menial job working as a farmhand. So those various offences, one might conclude, were irrelevant to the work he was doing.

GLEESON CJ: What was it that led him to shoot his employer?

MR McILWAINE: Nobody knows that, your Honour, because Mr Winsor to this day does not concede he was the person who did the shooting.

GLEESON CJ: I see.

MR McILWAINE: He was convicted by a jury - - -

GLEESON CJ: That is the fact on which this decision was based.

MR McILWAINE: The proceedings were conducted on the basis that because he was convicted by a jury and that conviction was concerned on appeal, that he was the person who did the shooting, but Mr Winsor has never conceded that and probably never will. There was a major issue in the case of trial of course as to whether the CES knew about Mr Winsor’s record, but we propose to conduct this application, and if there is a hearing, on the basis that CES did, unless your Honours were to allow some further evidence which would clearly show that they did not. But for present purposes, we are content to proceed on the basis that CES did. But the real problem with this holding, your Honour, is that, so long as it stands, the various organisations that conduct this welfare program cannot, as they said, and will not refer any ex-offender for an interview unless they consent to their criminal record being disclosed.

Of course, this program is one of the very kinds of welfare program which disadvantage peopled such as ex-offenders rely upon as part of the whole process of being rehabilitated. The best rehabilitation of course is work. It discriminates against them in the sense that other ex-offenders who are not relying on the program as an incentive for employers to employ them, who are under no duty to disclose their criminal record, if they are asked, they should, but they may not be asked because the sort of work that they are applying for may be the kind where, whether you have got the criminal record or not, it is completely irrelevant.

Your Honours, the short point, that is the problem that the holding below, on this aspect, throws open and it is for that reason that we would submit that it is a matter of public important that there be some clear guidance, one way or the other, for the providers of this welfare program as to how they should conduct themselves in the future because at the moment it is very, very unclear.

Your Honours, there is a second special leave point which I can refer to very quickly and that is this. It is whether, in order to make good a defence of voluntary assumption of risk, the defendant must establish that the plaintiff fully appreciated and accepted the precise harm that actually happened or, alternatively, fully appreciated and accepted the class of risk. In this case, Justice Campbell found that Mr Peter Monie did not accept the risk of being shot. It was our case that he clearly accepted the risk because he knew that Winsor had been in gaol for assault.

GLEESON CJ: He knew after the employment.

MR McILWAINE: He knew after the employment.

GLEESON CJ: And a week or so before the shooting.

MR McILWAINE: Yes. But he was prevented from explaining away what he may or may not have done because he denied that he did know, but the trial judge found that he did. The point we make is that if you accept, as the finding below was, that he did know, what he accepted and fully understood was the risk associated with someone who had a violent propensity.

GLEESON CJ: That is a risk associated with sacking somebody who has a violent propensity too.

MR McILWAINE: Yes.

GLEESON CJ: What do you do if you are an employer and you take on, unknowingly, someone who has violent propensities and then later you find out about their propensities? You dismiss them, at what risk?

MR McILWAINE: That may have been open to Mr Monie to say that, except he deprived himself at the trial of the opportunity to say that because he simply said, “I did not know, I was never told”. That did not arise as an issue in the trial. The real question is, whether, as Justice McHugh said in Joslyn – I appreciate Joslyn was a contributory negligent case – but when his Honour was talking about the common law rule relating to contributory negligence – so we would say it is analogous to voluntary assumption of risk – he made it clear in Joslyn that it is a question of the class of risk, not the specific risk.

In our respectful submission, the holding by Justice Campbell below restricted too narrowly the nature of the risk that has to be appreciated and accepted. They are the submissions we would make.

GLEESON CJ: Thank you, Mr McIlwaine. We do not need to hear you, Mr Rofe.

While an action for damages for negligence arising out of circumstances generally of the kind presented in this case is capable of giving rise to substantial issues of law, the decision of the Court of Appeal in the present case was highly fact specific, it was related to the way the case was conducted at trial and on appeal, and it was based on the application of well-established principles.

The case is not a suitable vehicle for the determination of any doubtful question of law. It does not raise an issue suitable to the grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant. The application is dismissed with costs.

AT 9.50 AM THE MATTER WAS CONCLUDED