Griffiths v Ballard [2005] NSWSC 1350

Griffiths v Ballard [2005] NSWSC 1350

Witness immunity absolutely bars the plaintiff's claim against the First Defendant for negligence and misfeasance, including under s 52 of the Trade Practices Act, but it is not so clear that the immunity extends to the Commonwealth (employer) as to warrant summary dismissal; the plaintiff's claims against the Commonwealth (except for misfeasance) were arguable and should not have been struck out summarily.

Jurisdiction
Australia
Judgment Date
22 December 2005
Procedural Posture
Appeal / Judgment on Appeal From Decision of Associate Justice (summary Dismissal/strike Out)
Outcome
Appeal allowed in part
Legal Topics
['witness Immunity' 'negligence' 'duty of Care' 'misfeasance in Public Office' 'trade Practices Act S 52' 'vicarious Liability' 'summary Dismissal']
['tort Law' 'administrative Law' 'statutory Interpretation' 'trade Practices'] ['witness Immunity' 'negligence' 'duty of Care' 'misfeasance in Public Office' 'trade Practices Act S 52' 'vicarious Liability' 'summary Dismissal']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Decision of Associate Justice (summary Dismissal/strike Out)

Legal Issues

  1. 1 ['Does witness immunity bar claims for damages against expert witnesses and their employer for alleged negligence and misfeasance in evidence/preparation?' 'Does the employer of a witness (Commonwealth) enjoy the same immunity as the witness?' 'Is there a duty of care owed by the Commonwealth (or its unit) to a person investigated/prosecuted based on their analysis?' "Can the conduct of the Commonwealth or its officers be characterised as 'in trade or commerce' for s 52 Trade Practices Act?" "Does the plaintiff's claim in misfeasance in public office have an arguable basis?"]

Ratio Decidendi

Witness immunity absolutely bars the plaintiff's claim against the First Defendant for negligence and misfeasance, including under s 52 of the Trade Practices Act, but it is not so clear that the immunity extends to the Commonwealth (employer) as to warrant summary dismissal; the plaintiff's claims against the Commonwealth (except for misfeasance) were arguable and should not have been struck out summarily.

Court Disposition

Appeal allowed in part

Orders

  • ['Orders of Associate Justice Harrison quashed; orders substituted as follows:' "Leave granted to the Plaintiff to file the Further Amended Statement of Claim attached to the affidavit of John Edmund Michael O'Connor of 26 July 2004;" 'Proceedings against the First Defendant are dismissed;' "Paragraphs 16, 29, 43...