Sherrington v Fleming and Others

• Jurisdiction: Northern Territory
• Judge: Barr J
• Judgment Date: 13 February 2023
• Court: Court of Appeal
• Docket Number: FILE NO: AP 10 of 2022 (22230913)

[2023] NTCA 1

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JUDGMENT OF:

Barr J

FILE NO: AP 10 of 2022 (22230913)

Between:

Jennifer Sherrington

Applicant

and

Kenneth Fleming & Ors

Respondents

REPRESENTATION:

Counsel:

Applicant: T Moses

Respondents: S J Free SC, L Peattie

Ex parte Bucknell (1936) 56 CLR 221; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572, 104 FCR 464, applied

Niemann v Electronic Industries Ltd [1978] VR 431; Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1, considered

Iskandar v Merpati Nusantera Airline (No. 2) (2006) 16 NTLR 22; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Northern Territory of Australia v Roberts [2009] NTCA 5; Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4; Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4, distinguished.

Supreme Court Act (NT) s 51(1), s 53(1), s 53(2)

PRACTICE AND PROCEDURE — Appeal — Court of Appeal consisting of a single judge — Application for leave to appeal from interlocutory decision refusing leave to commence proceedings for misfeasance in public office against former Independent Commissioner Against Corruption — Decision appealed from interlocutory, but not discretionary and not in a matter of practice and procedure — Prima facie case for grant of leave to appeal — Leave granted — Interests of justice make it desirable to grant leave

REASONS FOR DECISION

(Delivered 13 February 2023)

Introduction

1 The applicant seeks leave to appeal from the judgment of Burns J given on 9 September 2022. 1 The judgment was an interlocutory judgment and leave to appeal is therefore required by s 53(1) Supreme Court Act. The application must be determined in the first instance on the papers by the Court of Appeal consisting of a single judge; if the application is refused, the applicant is entitled to have the application determined by the Court of Appeal consisting of not less than three judges. 2

2 By writ filed in the Supreme Court on 9 December 2021, the applicant commenced a proceeding against several defendants: Independent Commissioner Against Corruption, Kenneth Fleming (who previously held office as Independent Commissioner Against Corruption) and the Northern Territory of Australia. In the statement of claim endorsed on the writ, the applicant alleged that Kenneth Fleming engaged in misfeasance in public office in the conduct of an investigation into the applicant's management of the Millingimbi School.

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

serious allegations against the applicant were false or misleading, or was recklessly indifferent to that fact

4 As a result of the matters summarised in the previous paragraph, the applicant alleged that Mr Fleming engaged in the tort of misfeasance in public office, for which the other defendants were said to be jointly and severally liable. 5

5 The Independent Commissioner Against Corruption Act 2017, s 155, provides Mr Fleming with immunity from civil liability in respect of things done in good faith when acting, or purportedly acting, in an official capacity:

155 Protection from liability – acting in official capacity

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

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

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

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

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

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

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

8 In Niemann v Electronic Industries Ltd, 8 the Full Court of the Victorian Supreme Court dealt with an application for leave to appeal from the decision of the judge refusing applications by summons for dismissal of the plaintiffs' actions for want of prosecution. The orders the subject of the

appeal were discretionary. McInerney J stated the principle on which the court should act in that case as follows: 9

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

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

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

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

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

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

11 Consistent with what was said by McInerney J in Niemann v Electronic Industries Ltd, in relation to applications for leave to appeal a discretionary judgment in a matter of practice or procedure, the authorities generally require that an applicant establish that the judgment appealed from is “attended with sufficient doubt so as to warrant its being reconsidered on appeal”. That test was applied by Nader J and Asche J in the Court of Appeal in Nationwide News v Bradshaw. 14 O'Leary CJ stated “general rules or guidelines” as to the manner in which the court would exercise its discretion in granting leave, including the requirement that “some prima facie case must be made out, short of hearing the appeal itself, for interfering with the exercise of his discretion by the primary judge”. His

Honour then gave, as examples, the wrongful application of principle, and misunderstanding or erroneous assessment of factual material. 15

12 The authorities distinguish the position where an interlocutory judgment determines substantive rights. In Niemann v Electronic Industries Ltd, Murphy J hinted at the difference in the passage extracted in [9] above, in suggesting that different considerations may well apply if the effect of the interlocutory order is to change substantive rights or finally to put an end to an action. His Honour reasoned...