(Two constituents wrote to their local Federal Member, Mr Jason Wood, who got identical responses from Mal Brough):
Thank you for your letter of 9 July 2007 on behalf of Mr _ _ _ _ about Ms Dawn Rowan.
Ms Rowan's debt to the Commonwealth arose as a result of her taking legal action against a number of defendants, including the Commonwealth, alleging that she was owed damages because of negligence, defamation, misfeasance and conspiracy. The allegations were made in the context of a joint Commonwealth/State report on women's shelters in South Australia, the details of which were broadcast on television in August 1987.
The matter was dealt with in the first instance by a single judge of the Supreme Court of South Australia. However, the Commonwealth (and other defendants) successfully appealed this decision to the Full Court of the Supreme Court of South Australia, who found that there was no legal basis to support Ms Rowan's allegations. The court made an in-principle decision that costs be awarded against Ms Rowan to compensate the Commonwealth (and other defendants) for reasonable expenses involved in defending the matter.
Ms Rowan then applied for special leave lo appeal that decision to the High Court of Australia. The High Court decided that leave should not be granted on the basis that Ms Rowan's case did not have reasonable prospects of success. The High Court emphasised that its role is to judge on untested general legal principles rather than to reverse a costs judgment in a particular case.
Generally, in circumstances where the Commonwealth considers that an applicant does not have reasonable prospects of success the Commonwealth can, in accordance with the Legal Services Directions 2005, invite the applicant to discontinue the legal proceedings in return for the Commonwealth not secking costs against the applicant. The Commonwealth docs this in the interest of avoiding the inevitable cost to all parties that are associated with the continuance of unjustified litigation. However, as you would understand, an applicant has a right to pursue legal avenues, notwithstanding any views the Commonwealth might offer and this is a decision for the applicant to take. Where an applicant refuses to discontinue legal proceedings, and rejects such an offer, the Commonwealth is left with no alternative but to pursue the recovery of costs.
The issue of costs was, in this case, determined by the Full Court of the Supreme Court of South Australia, in a separate judgment, after Ms Rowan had exhausted her avenues of appeal. The court awarded the Commonwealth $380,000 in costs. In coming to its decision. the court stated:
"We think that there is sufficient information upon which the court can conclude that a figure of $380.000 is logical, fair and reasonable ".
Under the Financial Management and Accountability Act /997, the Commonwealth is required to pursue payment of debts that are due to it, including debts that arise under costs orders of a court. In such circumstances. the Commonwealth must take whatever steps are appropriate to ensure that moneys due to it are paid to the greatest extent possible and returned to the Consolidated Revenue. While the Commonwealth may explore a range of options to obtain payment of a debt, in some situations this can only be done through legal action.
I am aware that Ms Rowan has made a number of public statements, including on her website, in relation to the Commonwealth's handling of this matter. For privacy reasons, I am not able to discuss the particular aspects of Ms Rowan's case which are not on the public record. However, I can say that in dealing with any matter involving the recovery of a debt, the Commonwealth is required to comply with a comprehensive legislative and policy framework, which is designed to treat debtors in a fair and reasonable manner.
In particular, the Commonwealth is required to comply with the principles set out in the Legal Services Directions 1005, including the requirement to behave as a model litigant. In this particular case, the Commonwealth complied with those principles. In accordance with the Legal Services Directions, the Commonwealth will, wherever possible and appropriate, endeavour to settle matters without the need for court proceedings. However, where satisfactory resolution cannot be achieved, it is sometimes necessary to seek the determination of the courts.
Once again, thank you for writing on Mr _ _ _ 's behalf. I trust my comments are of assistance.
Here's an informed response from Bob Moles, a legal expert in the area of miscarriages of justice, and author of A State of Injustice reproduced here with his permission:
I find the response by the Minister to be particularly disappointing.
It fails to have regard to the equity, justice and substantial merits of the case which were all in favour of Dawn Rowan.
It is particularly disappointing that the Minister refers to the duty to act as a "model litigant".
If regard had been had to that issue from the outset, this matter would never have occurred, and Ms Rowan's reputation would never have been put in question.
Let me know if you require something more,
Best wishes to all,
Dr Robert N Moles
The Hon. Philip Ruddock
CANBERRA ACT 2600
14 June 2007
I refer to the case of Dawn Rowan, whose plight was recently highlighted in the
Today Tonight on 14 May 2007, and whose case I'm sure of which you have been
After the broadcasting of that report, I have been contacted by a number of
constituents who are now concerned about the Commonwealth's role in the case.
As I understand the matter, Ms Rowan as a self-represented litigant joined the
Commonwealth as a defending party in her action against the South Australian
While the Commonwealth should not reward speculative litigation, I am concerned by
the implication in the reports that Ms Rowan's home is to be seized in lieu of payment of the Commonwealth's costs which were awarded against Ms Rowan.
In order to respond to these concerns, I therefore seek further detail from your office and the Department as to:
Firstly, whether this action is presently subject to further appeal (if so, I note you may not be able to provide advice on the questions following).
Secondly, whether the Commonwealth has, in fact, made a final determination on to
seizure of Ms Rowan's assets, and if so, what that decision is.
Thirdly, whether or not Ms Rowan is entitled to damages from other defendants in the
case, and whether consideration has been given to seizure of these funds.
Finally, whether or not a cost-benefit analysis has been performed on recovery of
costs from Ms Rowan.
I thank you for your consideration of this matter. I look forward to your early
Senator Joe Ludwig
*From: *"Tanner, Lindsay (MP)"
*Date: *9 October 2007 9:33:33 AM
*Subject: **Dawn Rowan*
Dear _ _ _ _
Thank you for your email of 2 October 2007 concerning Dawn Rowan.
I have received similar correspondence from another of my constituents earlier this year. I am able to inform you that representations have been made by our Shadow Attorney General Joe Ludwig to the appropriate Ministers (as the parties seeking to recover costs in the case), Attorney General Phillip Ruddock and The Minister for Community Services, Mal Brough. A query to Senator Ludwig’s office yesterday confirmed that there has as yet been no reply. I have attached a copy of the text of this letter for your information.
In addition to this I referred my constituent’s concerns about Ms Rowan’s situation to The Member for McEwen, Fran Bailey who is now Ms Rowan’s local member and hence the other most appropriate Member of Parliament to make representations on her behalf.
Shadow Minister for Finance Federal Member for Melbourne
A friend sent this article, from The Australian:
Judges too timid for hard cases: Kirby
October 11, 2007
THE High Court's "great dissenter", Michael Kirby, has taken a swipe at his fellow judges by suggesting they are too timid to make the signature decisions taken by the court in the 1990s.
Delivering the 10th annual Hawke Lecture in Adelaide last night - honouring the former Labor prime minister - Justice Kirby posed the rhetorical question whether today's court would rule the same way on the Mabo and Wik native title cases, among other landmark decisions that tested the limits of judicial activism under then chief justice Sir Anthony Mason.
His answer: "Probably not." More...