The Hon Robert McClelland MP
PO Box 6022 House of Representatives
Canberra ACT 2600
Enforcement of Commonwealth costs orders against Dawn Rowan
I refer to the case of South Australian constituent, Dawn Rowan, whose plight was highlighted by Today Tonight on 14 May 2007 (see http://jmm.aaa.net.au/).
I understand that Ms Rowan is currently the subject of bankruptcy proceedings arising from a debt owed to the Commonwealth. That debt arose as a result legal action taken by Ms Rowan 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. Ms Rowan succeeded against the State of South Australia, the Commonwealth and several media outlets. However, the Commonwealth (and other defendants) successfully appealed this decision to the Full Court of the Supreme Court of South Australia. Costs in favour of the Commonwealth and other defendants were awarded against Ms Rowan, who then applied for special leave to appeal that decision to the High Court of Australia. Leave to appeal was not granted by the High Court.
Ms Rowan has received strong support from many members of the community owing to a community perception that justice has not been done in this instance. She has endured many years of litigation at and suffered significant financial, personal and emotion toll. Although the Full Court’s judgement clearly allows the Commonwealth to recover its costs from M Rowan, as you will appreciate, the enforcement of a costs award involves a degree of discretion, taking into account any extenuating circumstances that would make such enforcement undesirable.
I also understand that the previous Government sought to justify the enforcement of the costs order on the basis of the Commonwealth’s obligation under the Financial Management and Accountability Act 1997 to pursue payment of debts that are due to it, including debts that arise under costs orders of a court. However, I note that pursuant to section 34 of the Financial Management and Accountability Act 1997, the Finance Minister may, on behalf of the Commonwealth, ‘waive the Commonwealth's right to payment of an amount owing to the Commonwealth’.
The ALP has expressed concerns of its own in relation to this matter in the past. On 14 June 2007 the then Shadow Attorney-General, Senator Joe Ludwig, wrote to the then Attorney-General, Philip Ruddock MP, noting his concern at reports indicating that Ms Rowan's home is to be seized in lieu of payment of the Commonwealth's costs. Senator Ludwig sought responses from Mr Ruddock as to the status of the matter, the Government’s attitude to the enforcement of costs, and queried whether or not a cost-benefit analysis has been performed on the costs recovery.
In light of these matters, can you please advise me of the following:
1. What is the status of any proceedings taken by the Commonwealth against Ms Rowan in relation to the enforcement of costs?
2. Given the concerns expressed by the Labor Party when in Opposition, does the Rudd Labor Government intend to pursue recovery of its costs? If so, will the Government consider seizure of Ms Rowan’s home?
3. Has a cost-benefit analysis been performed on the costs recovery? If so, what are the results of that analysis?
4. Will the Department seek the consent of the Minister for Finance and Deregulation to waive the Commonwealth’s entitlement to the debt pursuant to section 34 of the Financial Management and Accountability Act 1997?
I look forward to hearing from you at your earliest convenience.
Natasha Stott Despoja
Senator for South Australia
19 December 2007
Cc: The Hon Lindsay Tanner MP
Minister for Finance and Deregulation