AD v State of New South Wales

[2023] NSWCA 115

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AD v State of NSW [2023] NSWCA 115

Hearing dates:

26 April 2023

Date of orders:

26 May 2023

Decision date:

26 May 2023

Before:

Meagher JA at [1];
Basten AJA at [2];
Griffiths AJA at [37]

Decision:

(1)    Grant the applicant leave to appeal from the judgment and orders of the District Court of 10 November 2022, limited to the claim of false imprisonment.

(2)    Dismiss the appeal.

(3)    Continue the non-publication order made by Registrar Riznyczok dated 11 April 2023.

(4)    Order that the appellant pay the costs of the State of New South Wales in this Court.

(5)    No order as to the costs of the Attorney-General (NSW), intervening.

Catchwords:

TORTS – false imprisonment – trespass – misfeasance in public office – suspicion on reasonable grounds – whether arrest reasonably necessary – transfer of care of children following arrest – whether contrary to Family Court orders – inconsistency with a federal law – whether police officer acted maliciously – whether causative link between actions and loss

Legislation Cited:

Commonwealth Constitution, s 109

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8

Crimes Act1900 (NSW), ss 4, 35, 59, 418

District Court Act 1973 (NSW) s 127

Family Law Act1975 (Cth), s 65M

Judiciary Act 1903 (Cth), s 78B

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 4, 7, 99, 186, 230

Police Act 1990 (NSW), ss 3, 4, 5, 6, 7, 14, 201

Cases Cited:

British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44

Buck v Bavone (1976) 135 CLR 100 at 118-119 (Gibbs J); [1976] HCA 24

Butler v Attorney-General (Victoria) (1961) 106 CLR 268 at 282-283 (Taylor J); [1961] HCA 32

Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32

Holgate-Mohammed v Duke [1984] AC 437

Hutchinson v State of New South Wales [2019] NSWCA 91

Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571

Jankovic v Director of Public Prosecutions [2020] NSWCA 31

JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65

Prior v Mole [2017] HCA 10; 91 ALJR 441

Rickard v State of New South Wales [2010] NSWSC 151

Small v Smith (1884) 10 App Cas 119

State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185

State of New South Wales v Randall [2017] NSWCA 88

State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334

Swan v R [2016] NSWCCA 79

The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407

Wilson v State of NSW (2001) 53 NSWLR 407; [2001] NSWSC 869

Zaravinos v State of New South Wales (2004) 62 NSWLR 58; [2004] NSWCA 320

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013

Category:

Principal judgment

Parties:

AD (Applicant)
State of NSW (First Respondent)
Attorney-General of New South Wales (Second Respondent)

Representation:

Counsel:
R Sheldon SC and P Tierney (Applicant)
G Reynolds SC and M Gollan (First Respondent)
G Reynolds SC and D Birch (Second Respondent)

Solicitors:
Brydens Lawyers (Applicant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2022/370624

Publication restriction:

Pursuant to Order 1 of Registrar Riznyczok dated 11 April 2023, there is to be no publication of the names of the applicant, her former partner, and each of their current partners, as well as the children of the applicant and they are each to be referred to be the pseudonyms used in the primary court.

 Decision under review 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

[2022] NSWDC 546

Date of Decision:

10 November 2022

Before:

Weber SC DCJ

File Number(s):

2021/275125

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 7 April 2019, AD intervened in a brawl between her estranged husband, GM (the father of her children), and her new partner, MB. GM later provided evidence to police of the eye injuries AD had caused him. Subsequently, on 22 April 2019, AD was arrested at her home by Senior Constable Burley. In the course of the arrest Senior Constable Burley transferred to GM the care of his and AD’s two children, who up until then were in her care. This was done against AD’s strong protests that the transfer was in breach of Family Court parenting orders.

AD was charged with one count of recklessly causing grievous bodily harm and one count of assault occasioning actual bodily harm. A provisional ADVO was made against AD on the day of her arrest in which the protected persons were identified as both children and GM. Eight days later the children were removed from the ADVO. The grievous bodily harm charge was later withdrawn and the actual bodily harm charge was ultimately dismissed.

AD commenced proceedings against the State of New South Wales relying on three causes of action, namely trespass (constituted by entry of the police into AD’s home), false imprisonment (constituted by AD’s arrest and detention) and misfeasance in public office (constituted by Senior Constable Burley arranging for the two children to be transferred into GM’s care).

The primary judge entered judgment for the State of NSW against AD. As to false imprisonment, the primary judge considered that the objective facts substantiated Senior Constable Burley’s reasons for arrest. These reasons were the nature and seriousness of the offence, protection of the victim, and having AD brought before a Court at the earliest possibility.

As to trespass, the primary judge found that AD had voluntarily consented to Senior Constable Burley and his police colleague entering the property and later consented to the presence of the back-up police, as evidenced by AD’s engagement with Senior Constable Burley’s supervisor.

As to misfeasance in public office, the primary judge held that Senior Constable Burley was not “removing” the children, and that his actions were incidental to the power of arrest. Senior Constable Burley did not act with malice nor was he recklessly indifferent to the availability of power to support his conduct. The requisite causal link between Senior Constable Burley’s actions and AD’s physical illness and incurrence of legal fees was also not established.

His Honour made a contingent assessment of damages for false imprisonment of $10,000, and found that damages for trespass and misfeasance in public office could not be assessed.

AD sought leave to appeal against the primary judge’s decision.

The Court (Meagher JA, Basten and Griffiths AJA) held, granting leave to appeal on the false imprisonment ground only, and dismissing the appeal:

The false imprisonment claim

1. No appellable error was established as to the primary judge’s conclusion that Senior Constable Burley had reasonable grounds under s 99(1)(a) of the LEPR Act to suspect AD had committed the offence of grievous bodily harm. The lack of reference to the adjective “really serious” was not significant or fatal. The failure to make any express reference to “really serious injury” may simply reflect the fact that AD’s challenge below did not focus on the presence or absence of evidence which satisfied that particular phrase. (Meagher JA at [1]; Basten AJA at [12]; Griffiths AJA at [110]-[114])

Swan v R [2016] NSWCCA 79 applied.

1. As to s 99(1)(b), although Senior Constable Burley referred to the need to bring AD before a court at the earliest opportunity, that was not the language of s 99(1)(b)(iv). Senior Constable Burley’s sought to achieve the imposition of bail conditions and a provisional ADVO, a purpose within s 99(1)(b)(viii). It is not sufficient for the Court to form a different view to that of the arresting officer. Section 99(1)(b) is expressed in terms of the state of satisfaction of the police officer, not the Court reviewing the arrest. Arresting with the intention that bail conditions and a provisional ADVO be imposed as a consequence of the arrest did not take the conduct outside the terms of s 99(1)(b)(viii). Section 99(1)(b)(ix) depends upon a characterisation of the offence, requiring an evaluative judgment against an imprecise criterion. The basis of the challenge to a decision under s 99(1)(b) must turn on proof that the decision-maker has committed legally reviewable error in forming the requisite state of satisfaction. (Meagher JA at [1]; Basten AJA at [16]-[27])

   Hyder v Commonwealth of Australia [2012] NSWCA 336 considered; State of New South Wales v Randall [2017] NSWCA 88 applied

2. There was no appellable error in the primary judge’s conclusions as to Senior Constable Burley’s state of satisfaction under s 99(1)(b). The primary judge was correct to accept Senior Constable Burley’s explanation as to why a CAN was not preferable, with particular regard to the terms of s 99(1)(b)(iv), (viii) and (ix). (Griffiths AJA at [115]-[124])

The trespass claim

1. AD’s case on appeal in trespass was directed solely to the back-up police officers. The video footage supported the primary judge’s finding that AD told the back-up police that she had no problem with them being in the house and she actively engaged with one of the back-up police officers. (Meagher JA at [1], Basten AJA at [9]; Griffiths AJA at [126]-[128],)

The misfeasance in public office claim

1. As to whether there was an invalid or unauthorised act, Senior Constable Burley’s actions were not prohibited by the Family Court orders. The orders implicitly contemplated that the parents would cooperate and act reasonably and responsibly in agreeing the times when the children will be with their father. (Meagher JA at [1]; Griffiths AJA at [139])

2. The primary judge did not err in concluding that Senior Constable Burley’s actions were incidental to the exercise of his statutory power of arrest under s 99 of the LEPR Act. The primary judge made no unequivocal finding that s 6(2)(c) provided an independent source of statutory power for those actions. Section 6 deals with structural and institutional matters and the general functions of police officers, as opposed to operational policing activities and powers. (Meagher JA at [1]; Griffiths AJA at [166]-[170])

   Hutchinson v State of New South Wales [2019] NSWCA 91; State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 considered

3. As to whether Senior Constable Burley acted maliciously, nothing raised displaced the primary judge’s conclusion that Senior Constable Burley acted without malice and in a reasonable and responsible fashion in making appropriate arrangements for the welfare of the children. (Meagher JA at [1]; Basten AJA at [8]; Griffiths AJA at [152])

4. No appellable error was established as to causation of loss or harm. The incurring of legal fees by AD to have her children returned to her custody was part of the ongoing custody dispute. AD’s claims of incapacity were not supported by medical evidence. (Meagher JA at [1]; Basten AJA at [11]; Griffiths AJA at [156]-[158])

Damages

1. This matter did not strictly arise; in any event, AD did not demonstrate any arguable House v King error. (Meagher JA at [1]; Basten AJA at [11]; Griffiths AJA at [161])

The Constitutional issue

1. The officer’s power to make arrangements for the care of the children was incidental to the statutory power of arrest, and fell within ss 6(2)(c) and 14 of the Police Act 1990 (NSW). However, the charge of inconsistency with a federal law failed to take account of the terms of the provisional ADVO which appeared to exclude from the prohibition on contact, arrangements with respect to children. The Constitutional issue did not need to be determined. (Basten AJA at [31]-[35]).

2. The Constitutional issue is limited to the relationship between s 6 of the Police Act and s 65M of the Family Law Act. Section 99 of the LEPR Act is a sufficient source of power to rebut AD’s claim so there is no need to rely on s 6 of the Police Act. The Constitutional issue should only be determined if it is necessary to do so and it does not arise. (Griffiths AJA at [166]-[170])

   Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 applied

JUDGMENT

1. MEAGHER JA: I have had the opportunity of reading in draft the judgments of Griffiths AJA and Basten AJA. I agree with the orders proposed by Griffiths AJA. In relation to the refusal of leave to appeal in respect of the rejection by the primary judge of the claims for trespass and misfeasance in public office, I do so for the reasons given by Griffiths AJA. With respect to the appeal in relation to the rejection of the false imprisonment claim, I agree that appeal should be dismissed for the reasons given by Basten AJA.

2. BASTEN AJA: The background to this application for leave to appeal has been fully recounted by Griffiths AJA and only key factors need be noted here. The names of the applicant, her husband and the children are not available for publication and will not be used in these reasons.

Background to application

3. On 22 April 2019, the applicant was arrested and charged with one offence of recklessly inflicting grievous bodily harm and one of assault occasioning actual bodily harm. The victim of the assaults was her estranged husband and occurred during a fight between the husband and the applicant’s present partner. The fight took place in a carpark whilst the applicant’s children were being transferred from the husband’s care to the applicant’s care.

4. The charges were not laid at the time of the fight, but only following a visit by the husband to the police some two weeks later, at which time he provided evidence of scratches to his face and eyeball, which he said had been made by the applicant when she sought to intervene in the fight from behind him, in an attempt to pull him away from her partner.

5. At the time the charges were laid, the arresting officer arranged for a provisional apprehended domestic violence order to be issued naming the husband and the children as the persons to be protected. The relevant order required that she not approach her husband or the children or contact them, “unless the contact is … as ordered by this or another court about contact with children”. Further, and somewhat confusingly, the order also permitted the contact to be “as agreed in writing between you and the parent(s) about contact with children”.

6. In 2021, the applicant commenced proceedings against the State of New South Wales, a claim which went to trial in the District Court on a further amended statement of claim filed on 23 March 2022. It included three causes of action, namely trespass to property (constituted by entry of the police into the applicant’s home); false imprisonment (constituted by the arrest and detention of the applicant); and misfeasance in public office (constituted by the conduct of the arresting officer arranging for the two children to be transferred to the care of the husband at the time of the applicant’s arrest).

7. The trial judge, Weber SC DCJ, dismissed the proceedings. [1] Contingently, he assessed damages for false imprisonment in an amount of $10,000, against the possibility that he was in error in dismissing the claim for false imprisonment. He did not assess damages for trespass, for misfeasance in public office, nor aggravated and exemplary damages. Although the applicant challenged the adequacy of the limited contingent assessment, she accepted that the amount in issue was not of the value of $100,000, thus requiring leave pursuant to s 127(2)(c) of the District Court Act 1973 (NSW).

   1. AD v State of New South Wales [2022] NSWDC 546 (Judgment).

Leave to appeal

8. If all three claims had been made good, there might have been an arguable case for damages of $100,000. However, for the reasons given by Griffiths AJA, the claim for misfeasance in public office was not reasonably arguable, in the light of the credit findings made in favour of the arresting officer by the trial judge. The actions of the officer in arranging for the children to be taken care of by the husband may have been misguided, but the evidence did not establish malice. Some further explanation of one element of that claim will be addressed below. The applicant asserted that a novel issue was raised with respect to the arrangements for the care of the children, which were said to be inconsistent with parenting responsibility orders which had been made by the Family Court of Australia. That issue did not arise in the circumstances of this case. While it is appropriate to explain why that was so, it does not warrant a grant of leave to appeal.

9. Similarly, the claim in trespass was not reasonably arguable on the evidence presented at trial. There was no challenge to the finding that the applicant had consented to the arresting officer and his assisting officer from entering her home; the claim was pursued only with respect to two other officers who arrived subsequently, in a request from the arresting officer after the applicant’s partner had attempted to close the door against him. As explained by Griffiths AJA, the challenge to the finding that the applicant had no objection to the presence of the four officers was untenable: it does not warrant a grant of leave to appeal.

10. With respect to the lawfulness of the arrest, there were serious issues to be determined as to whether the arrest was reasonably necessary for one of the reasons identified in s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 1999 (NSW) (the Law Enforcement Act), which will be addressed below.

11. It follows, in my view, that there should be a grant of leave to appeal limited to the challenge to the dismissal of the claim for false imprisonment.

Claim for false imprisonment

12. The factual circumstances underlying this claim have been sufficiently explained in the reasons of Griffiths AJA. I agree with his conclusion that the grounds of appeal relating to this matter should be dismissed, but prefer to explain my reasons for reaching that conclusion.

13. So far as relevant, s 99 of the Law Enforcement Act provided in April 2019, prior to its amendment in 2021, read as follows:[2]

    2. The section is more completely set out at [97] below. The 2021 amendments did not affect these parts of the section.

99   Power of police officers to arrest without warrant

(1)   A police officer may, without a warrant, arrest a person if—

(a)   the police officer suspects on reasonable grounds that the person… has committed an offence, and

(b)   the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—

…

(iv)   to ensure that the person appears before a court in relation to the offence,

…

(viii)   to protect the safety or welfare of any person (including the person arrested),

(ix)   because of the nature and seriousness of the offence.

14. The specification in par (b) of a list of reasons, at least one of which must, in the opinion of the arresting officer, be “reasonably necessary”, demonstrates an intention to confine the power of arrest, with its immediate deprivation of liberty.

15. The alternative process available to an officer who reasonably suspects that an offence has been committed by a particular person is to issue a court attendance notice and serve it on the person. In circumstances where the decision to charge a person is taken some time after the event (in this case two weeks later) and in circumstances where there is no real risk that the person will repeat the offending, nor flee from police, and where the person’s identity is well-known, it will usually be sufficient to issue a court attendance notice.

16. In this case, although there was reference in the evidence to the arresting officer relying on the need to ensure that the applicant appeared before a court “at the earliest opportunity”,[3] that was not the language of par (iv). What he really wanted to achieve was the imposition of bail conditions and the issue of a provisional apprehended violence order in order to protect other members of the family, a purpose which fell within par (viii). The officer also took the view that the offences, and particularly that of recklessly inflicting grievous bodily harm, was sufficiently serious in itself to warrant arrest pursuant to par (ix).

    3. Judgment at [80]. DC Tcpt, p 387(25).

14. The issue of the provisional AVO, together with a court attendance notice which was served on the applicant immediately following the laying of charges, resulted in the case coming before the Local Court some eight days later, on 30 April 2019. In that respect, it may be said that the arresting officer’s intentions were fulfilled and a regime for the protection of the safety and welfare of family members was effected. It may be noted, however, that at the first hearing in the Local Court the children were removed from the AVO as parties in need of protection.

15. Further, given that the applicant had intervened in the fight only to protect her partner, a different view was reasonably open as to the need for an AVO to protect her estranged husband from her. The trial judge accepted that the arresting officer “was of the view that both [the husband] and the children needed protection from further incidents of a similar nature”. [4] While the officer may have genuinely been of that view, the judge further stated that “[t]his is a view which in my opinion could hardly be gainsaid”. That is a matter about which reasonable minds might differ.

    4. Judgment at [95].

16. To form a different opinion to that of the arresting officer is not, however, sufficient for the applicant to succeed in this case. Her difficulties are three-fold. First, s 99(1)(b) is expressed in terms of the state of satisfaction of the police officer, not of the court reviewing the arrest. While such a state of satisfaction is not unreviewable,[5] the limited grounds on which it may be reviewed will be addressed shortly.

    5. Buck v Bavone (1976) 135 CLR 100 at 118-119 (Gibbs J); [1976] HCA 24.

17. Secondly, on one reading of par (viii), for the arrest to be reasonably necessary to protect the safety or welfare of any person, it is the arrest itself which must be intended to provide such protection. However, in circumstances where there is no clear and immediate threat to the person arrested or another person, the arrest could not have been thought to be reasonably necessary for that purpose. However, as with the separate ground of stopping a person from repeating the offence or committing another offence (par (i)), it cannot be intended that the mere fact of the arrest will necessarily have the identified effect. The arresting officer is not required to form a view as to whether bail would be granted, or on what conditions; however, as a practical matter it is likely that in many circumstances (including the present) release on bail almost immediately is to be expected and it is the imposition of appropriate conditions which may well provide protection to others, or render the commission of further offences less likely. Accordingly, arresting with the intention that bail conditions (and conditions of a provisional AVO) be imposed as a consequence of the arrest, did not take the conduct outside the terms of par (viii).

18. Thirdly, there is no doubt that the arresting officer, as the judge accepted, placed weight on the seriousness of the offences and particularly that of inflicting grievous bodily harm. Of the nine factors identified in s 99(1)(b), the first eight are all purposive; par (ix) is not. It depends on the characterisation of the offence. Such characterisation requires an evaluative judgment against an imprecise criterion. There will be some summary offences as to which no officer could reasonably opine that they should be characterised as “serious”. Many other offences may be open to different views, depending on the circumstances in which they occur, and the knowledge of the officer.

19. This suggests there may be circumstances in which the purposive constraints imposed by s 99(1)(b)(i)-(viii) may be evaded by reliance on a state of satisfaction as to the seriousness of the offence. It is tempting, in order to avoid this apparent weakness in the legislative scheme, to look for a purposive element against which to judge the criterion of “the nature and seriousness of the offence”. It is difficult to identify a legislative purpose from the text, and it would be inappropriate to create one, absent assistance from extrinsic materials. In fact assistance can be obtained from the second reading speech, but not to limit the scope of par (ix). In introducing the Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Bill 2013, the then Premier, Mr Barry O’Farrell, stated that the purpose of the bill was “to amend the [Law Enforcement Act] to ensure that police have clear, simple and effective powers of arrest to protect the community”. He noted that two members of the government had provided a review of the Law Enforcement Act in response to concerns that s 99 was “complex and difficult to apply”. The Premier continued: [6]

“The job of front-line police is already hard enough, without being made harder by having to deal with legal complexities. The legislation seeks to ‘uncuff’ the police so they can handcuff criminals.

… New section 99(1)(b) replicates and simplifies the existing reasons for arrest contained in section 99(3) of the Act. It also introduces new reasons to arrest without a warrant that better reflect the circumstances in which police are called on to act in order to keep the community safe.”

6. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2013, p 25093.

23. The second reading speech may support a view that par (ix) was inserted to deal with decisions needing to be made in the heat of the moment. However, the text provides no basis to limit it to those circumstances and consideration of the second reading speech as a whole might not be thought to warrant such a limitation in any event.

24. It is sufficient in the present circumstances to accept that the offence of recklessly inflicting grievous bodily harm will often, perhaps usually, constitute a serious offence. According to a current understanding of that provision, it requires, in colloquial terms, the infliction of “really serious harm”. Recklessly causing grievous bodily harm carries a maximum penalty of imprisonment for 14 years. [7] The question arising in the present case is, therefore, whether the arresting officer could reasonably have formed the opinion that it was reasonably necessary to arrest the applicant having regard to the nature and seriousness of the offence he then suspected had been committed, as well as the need to protect the safety or welfare of her family.

    7. Crimes Act 1900 (NSW), s 35(2).

25. It is convenient to return to the grounds on which a state of satisfaction may be challenged. There was criticism of the judge’s statement that the arresting officer’s decision could “only be impugned on the basis of the principle often referred to as ‘Wednesbury Unreasonablenes’”. [8] The judge found support for that proposition in the reasons of McColl JA in Hyder v Commonwealth of Australia. [9] McColl JA stated that the decision “whether or not to arrest and ... the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in [Wednesbury] … applied in Zaravinos v State of New South Wales”. [10]

    8. Judgment at [81].

    9. [2012] NSWCA 336 at [15].

    10. (2004) 62 NSWLR 58; [2004] NSWCA 320 at [28] (Bryson JA, Santow JA and Adams J agreeing).

26. There are risks in relying upon English cases and cases under Commonwealth law in addressing the terms of a State statute, without identifying points of similarity or difference. However, the approach in Hyder was subsequently adopted in relation to s 99 by this Court in State of New South Wales v Randall:[11]

“13   … Most challenges to the validity of arrests turn on whether or not there were reasonable grounds for the suspicion, the grounds being a matter for assessment by the court. [12] By contrast, both the first limb and the second requirement involve a precondition to the exercise of the power of arrest which depends, not upon objectively verifiable circumstances, but on the state of satisfaction of the officer. Accordingly, unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable,[13] or ‘arbitrary, capricious, irrational, or not bona fide’,[14] as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. [15] ”

11. [2017] NSWCA 88.

12. See with respect to similar (though not identical) Northern Territory legislation, Prior v Mole [2017] HCA 10; 91 ALJR 441 at [4] (Kiefel CJ and Bell J); [24]-[27] (Gageler J); and [98]-[101] (Gordon J).

13. Holgate-Mohammed v Duke [1984] AC 437 at 443 (Lord Diplock), adopted in Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 at [15](10) (McColl JA).

14. The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ).

15. (1999) 197 CLR 611; [1999] HCA 21 at [131]-[137].

27. The Court in Randall was divided as to whether the State should be granted leave to appeal, but not as to the principles to be applied to the substantive question. The basis of the challenge must turn on proof that the decision-maker has committed legally reviewable error in forming the requisite state of satisfaction.

28. While the wholehearted endorsement of the arresting officer’s views need not be accepted, the applicant has not established either that he did not hold the state of satisfaction as to reasonable necessity of the course taken, as he asserted in his evidence, or that such a state of satisfaction was manifestly unreasonable, or arbitrary or capricious in the sense identified in the authorities.

29. For these reasons, in my view the challenge to the lawfulness of the arrest must fail.

Misfeasance in public office

30. The claim that the arresting officer, in arranging for the children to stay with the father following the mother’s arrest, involved a misfeasance in public office must be rejected for the simple reason that the judge did not find, and the evidence came nowhere near establishing, that the arresting officer acted with malice. In my view, he took steps, whether misguided or not, to make arrangements for the care of the children whilst the mother, who presently had such care, was in custody. I agree with the reasons of Griffiths AJA in that respect.

31. There are two further matters to which it is convenient to refer. The first was a dispute as to whether the officer’s powers to take such steps derived from s 6(2)(c) of the Police Act 1990 (NSW). If the power was not identified in that source, it appears to have had no statutory source. That would be significant for two reasons. First, it would remove what was claimed by the applicant to be an inconsistency between a State statute and a law of the Commonwealth. The law of the Commonwealth was the vesting in the Family Court of power to make orders which respect to parental responsibility for children of a marriage. (Indeed, the powers extend to children in de facto relationships, but this case involved a marriage.) Such a conflict was necessary to engage s 109 of the Constitution. [16]

    16. Butler v Attorney-General (Victoria) (1961) 106 CLR 268 at 282-283 (Taylor J); [1961] HCA 32.

32. If the officer had power to take the steps he did with respect to the care of the children, it was arguably incidental to his powers of arrest without a warrant. Such incidental powers may arise from (i) the general law powers of a constable; (ii) by implication from the conferral of the statutory power of arrest; or (iii) the incidental powers referred to in s 6(2)(c) of the Police Act. It may be sufficient that either (ii) or (iii) will constitute a State law for the purposes of resolving inconsistency with a Commonwealth law under s 109 of the Constitution. However, there is no apparent reason to read s 6(2)(c) down so as to have no operative effect in conferring power. Section 6(1) dealing with the “mission” of the NSW Police Force may be aspirational, but the identification of functions in s 6(2) is not. Section 6(6) recognises that the section confers powers, and limits the conferral so as not to be inconsistent with the Law Enforcement Act. That limitation is apt to apply to s 6(2)(c).

33. However, the issue need not be resolved by reliance on s 6(2)(c) in isolation. Section 14 of the Police Act states:

14   Additional functions of police officers

(1)    In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State.

(2)    Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

Section 14(1) arguably provides a sufficient statutory basis for any power or function of a constable arising under the common law to engage s 109 of the Constitution.

34. As Griffiths AJA observes, the constitutional question should not be determined unless it is necessary to do so. It is not necessary in the present case. But it may be observed that there were numerous problems lying in the way of the conclusion that, as the applicant asserted to the arresting officer at the time he was seeking to make such arrangements, he was intruding on the exercise of a Commonwealth power. First, the applicant’s argument revolved around the operation of orders made by the Family Court, rather than the statutory provision pursuant to which such orders were made. Secondly, it ignored the fact that the Family Law Act deals in some detail with the relationship between family violence orders under prescribed State laws and the powers of the Family Court with respect to children. Thirdly, it failed to take account of the terms of the provisional AVO noted above, which appear to exclude from the prohibition on contact between wife and husband the arrangements to be made with respect to children.

35. It would be unreasonable to expect someone in the position of the applicant to consider such matters in the circumstances with which she was faced when the arresting officer proposed to allow the father to take care of the children temporarily. However, careful attention to such matters might be expected from lawyers before commencing litigation, both by way of trial and appeal. The assumption appears to have been made (on both sides of the record) that contact between the applicant and her children had been prohibited for the eight days until the children were removed from the terms of the AVO. That assumption was not self-evidently correct.

Conclusions

36. For these reasons, I agree that the following orders should be made:

1. Grant the applicant leave to appeal from the judgment and orders of the District Court of 10 November 2022, limited to the claim of unlawful imprisonment.

2. Dismiss the appeal.

3. Order that the applicant pay the costs of the State of New South Wales in this Court.

4. No order as to the costs of the Attorney-General (NSW), intervening.

37. GRIFFITHS AJA: The applicant, AD (a pseudonym), seeks leave to appeal from the whole of the decision in ADv State of New South Wales [2022] NSWDC 546 (“primary judgment or “PJ”), in which Weber SC DCJ dismissed the applicant’s three causes of action, namely false imprisonment, trespass and misfeasance in public office.

38. The applicant commenced proceedings against the State of NSW, on the basis that the State was vicariously liable for the actions of (now Senior Constable) Constable Burley. Senior Constable Burley had arrested the applicant in relation to a brawl on 7 April 2019, in which AD became involved, between AD’s estranged husband, GM (who was the father of her two children), and AD's new partner, MB, which occurred when the applicant and MB were collecting her children from GM in a public carpark.

39. On 22 April 2019, the applicant was arrested and charged with one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act1900 (NSW) (“Crimes Act”) and one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. These related to injuries caused by AD to GM’s eye when the applicant intervened in the fight between GM and MB.

40. The claim for damages for false imprisonment, trespass and misfeasance in public office relates to the actions of Senior Constable Burley on 22 April 2019. It was on that day that AD was arrested, taken into custody, and the care of her children given to their father, GM. These actions were taken against the applicant’s strong protests, which were partly based on her claim that such actions were in breach of formal orders as to parenting made by the Family Court.

The primary judgment

Background facts

41. The primary judge’s relevant findings of fact may be summarised as follows.

42. As at April 2019, the applicant and GM were married, but estranged. They had two daughters, SM and MM, who were then aged 9 and 7 respectively. Pursuant to consent orders dated 25 July 2017 of the Family Court of Australia (the Family Court orders), AD and GM had equal shared parental responsibility for the children. Those orders stated, inter alia, (noting in particular orders 3 and 4) as follows:

BY CONSENT IT IS ORDERED:

Parenting

1.    That the Mother and Father have equal shared parental responsibility for the children [SM and MM] (“the children”) including but not limited to:

1.1    The school or schools that the children are to attend.

1.2    The children’s religious instruction and upbringing.

1.3    The medical treatment that the children are to receive.

1.4    Where the children will live (in the event that changes to living arrangements for either parent will result in making it significantly more difficult for the children to spend time with the other parent).

1.5    The sporting and other activities that the children are to engage in that would occur when they are to live with or spend time with each parent.

2.    That the parent with whom the children live with at that time is responsible for the day to day decisions concerning their care, welfare and development.

3.    The children will live with the Mother.

4.    The children will spend time with the Father at all times as can be agreed between the parties.

5.    The children will communicate with the parent that they are not staying with at all times that they express a wish to do so.

43. Pursuant to these orders, the children had been living with their mother, the applicant, and spending certain weekends with their father, GM. However, by April 2019 some tension had developed between the parents on occasions when the children were transferred from the care of one parent to that of the other.

The Fight

44. As a result of this tension, the applicant asked MB to accompany her to pick up the children on 7 April 2019 (which happened to be Easter Monday) from GM at the carpark of a 7-Eleven convenience store in South Penrith.

45. After the children entered the applicant’s vehicle, a physical brawl broke out nearby between MB and GM which caused the children to scream. As MB was being punched by GM, while confined to a space between the open door of the applicant’s vehicle and car’s doorframe, the applicant grabbed GM from behind, around the area of his face. The fight was captured by CCTV installed in the 7-Eleven carpark as well as by mobile phone video footage taken by the applicant and GM’s new partner, OM.

46. After the fight ended, both couples drove separately to the Penrith Police Station to report the incident. Both GM and MB were arrested and charged. GM had a significant injury to his right eye, including a laceration to the eyeball.

47. Senior Constable Burley made arrangements for GM to attend Penrith Police Station on 20 April 2019 to give a statement. GM alleged that, during the fight, the applicant had grabbed at his eye, including his eyeball, with her fingernails. He said that he had a 2mm laceration to his eyeball, blurred vision, was unable to work or drive for a period of one month and was receiving medical treatment for his injured eye. He noted that he was awaiting an MRI to reveal the full extent of his injuries.

The Arrest of AD

48. On 21 April 2019, Senior Constable Burley attended the 7-Eleven store to obtain the CCTV footage of the brawl, which he viewed at the convenience store. He then rewatched the footage at the Penrith Police Station and was of the view that it was appropriate to arrest and charge AD with the offences of recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm. Before doing so, he sought the advice of detectives as to whether the injuries would amount to grievous bodily harm, who concurred with his judgment.

49. On 22 April 2019, at about 6:00pm, Senior Constable Burley and Provisional Constable Tallon attended the applicant’s home and placed her under arrest. What occurred at and following the arrest was captured by the body worn cameras worn by the police officers who attended the premises.

50. Senior Constable Burley had arranged for GM to be in the vicinity of the applicant’s home when he arrested her. Senior Constable Burley told AD that the children would be given into the care of GM, which caused her to become distressed. Senior Constable Burley allowed the applicant to go inside to try to find the Family Court orders which she claimed only allowed GM to have access to the children with her consent. MB then attempted to close the front door on Senior Constable Burley who prevented the door from being closed and called for assistance on his radio. The applicant then said to the two police officers who were then present (Senior Constable Burley and Provisional Constable Tallon):

“I am fine for you to come in. We have got proof, I’m going to get you the court orders -”

51. When additional police officers arrived, including Senior Constable Burley’s supervisor, the applicant said:

“I don't have a problem you with you in my house, what the problem I have is I have court orders that say that I don't have to get - ” 

52. AD engaged with Senior Constable Burley’s supervisor, expressing her view that the Family Court orders precluded the police from allowing her daughters to go into GM’s custody without her consent.

53. Ultimately, AD accepted the reality of what was going to occur, and she told her children that they were going to their father’s house. The children did not respond with visible distress. The applicant then requested that she be able to change her clothes, which Senior Constable Burley allowed to occur on the condition that a female officer was present.

54. AD was charged at Penrith Police Station and a provisional Apprehended Domestic Violence Order (ADVO) was made against her, as requested by GM’s solicitor and authorised by Senior Constable Burley’s supervisor. The protected persons were identified as both children and GM. The children were removed from the provisional ADVO on 30 April 2019.

55. Subsequently, the grievous bodily harm charge was withdrawn and the actual bodily harm charge was dismissed at a hearing in the Local Court.

The primary judge’s reasons summarised

56. The primary judge’s reasons for dismissing all three causes of action may be summarised as follows.

57. The primary judge first dealt with issues of credit. Senior Constable Burley was found to be a witness of truth who was prepared to make appropriate concessions. The applicant’s criticisms of his evidence were rejected.

58. The primary judge made strong adverse credit findings against AD. He described her as a witness who was “consumed by an animus towards Senior Constable Burley” and that she would “happily abandon the truth if it stood in the way of success in these proceedings”.

59. A part of the basis for the adverse credit findings was the primary judge’s conclusion that the applicant had falsely asserted that GM had showed his elder daughter pornography on his phone, which suggested that GM had acted “reprehensibly”. The applicant had given a different version of events in an affidavit in the Family Court, where she claimed that GM had allowed his daughter to have access to his mobile phone and she then found the pornography herself.

60. It is unnecessary to go into any further detail concerning the basis for the primary judge’s adverse credit findings against AD in circumstances where those findings are not challenged on appeal. The primary judge did not accept the applicant’s evidence unless it was against her interest or corroborated by independent sources.

False imprisonment

61. In respect of the grievous bodily harm offence, AD submitted that Senior Constable Burley could not have held the suspicion required by s 99(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPR Act”). AD argued that s 99(1)(a) of the LEPR Act could not be satisfied as certain medical evidence (an MRI) concerning the injuries to GM’s eye was outstanding at the time of the arrest. In respect of to the actual bodily harm charge, the applicant argued that s 99(1)(a) of the LEPR Act could not be satisfied as she may have raised the issue of self-defence under s 418 of the Crimes Act, and Senior Constable Burley had relied on “exaggerated claims” by GM and OM.

62. The primary judge rejected those submissions. He emphasised that Senior Constable Burley had seen GM’s injured eye in person on 7 April 2019 and in photos. Furthermore, he had seen the written statements of GM and OM, as well as the mobile phone and CCTV footage of the fight. The photos of GM’s eye and GM’s continued complaints, in the primary judge’s view, were sufficient to establish that the eye injuries were “serious”. The primary judge considered that it was not necessary for Senior Constable Burley to be in a position to run the prosecution at the time of the arrest, in order for him to have formed the relevant suspicion. The primary judge considered that the prospect of self-defence being raised could not deprive a police officer of reasonable grounds upon which to suspect that an offence had been committed.

63. As to s 99(1)(b) of the LEPR Act (which required Senior Constable Burley to have been satisfied that it was reasonably necessary to arrest the applicant), the primary judge noted that Senior Constable Burley gave three reasons for the arrest. They were the “[n]ature and seriousness of the offence, protection of the victim, and to get [the applicant] before the Court at the earliest possibility”. The primary judge accepted Senior Constable Burley’s reasons and added that the decision to arrest the applicant “can only be impugned on the basis of the principle often referred to as ‘Wednesbury Unreasonableness’”. His Honour referred to Hyderv Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15] per McColl JA (“Hyder”) and rejected any implicit suggestion that the availability of review for Wednesbury unreasonableness as approved by McColl JA in Hyder had been disapproved in Jankovicv Director of Public Prosecutions [2020] NSWCA 31 (“Jankovic”).

64. The primary judge explained why he considered that the objective facts substantiated Senior Constable Burley’s stated reasons for making the arrest. As to the seriousness of the offences, the primary judge noted at [88] that the maximum terms of imprisonment for the two offences were respectively 10 and 5 years. The seriousness of the offences was also reflected in the extent of the injuries and their consequences for GM. The fact that they occurred in a domestic violence setting elevated the seriousness and meant that GM and the children needed to be protected from further incidents of a similar nature. The primary judge also referred approvingly to Senior Constable Burley’s view that the matter needed to be brought before the Court as soon as possible, in order to best protect the victims. The issuing of a Court Attendance Notice (CAN), as an alternative to an arrest, would not achieve this as quickly as an arrest would. The primary judge found at PJ[97] that the decision to arrest the applicant was proportionate to the circumstances of the case and that Senior Constable Burley had given consideration to alternatives to arrest, as reflected in his consideration of whether to issue a CAN.

65. The fact that Sergeant Cotton (who was the Domestic Violence Team Leader for the Nepean Police Area Command and had emailed Senior Constable Burley after the incident expressing some reservations about his approach) might have acted differently to Senior Constable Burley was not sufficient to show Wednesbury unreasonableness, especially in circumstances where detectives had concurred in advance with Senior Constable Burley’s assessment of the seriousness of GM’s injuries.

66. Having found that the requirements under s 99(1)(a) and (b) were satisfied, the primary judge found that the State of NSW had established the lawfulness of the arrest under s 99 of the LEPR Act. That disposed of the applicant’s false imprisonment case.

Trespass

67. At the trial, the applicant contended that the trespass was constituted by Senior Constable Burley placing his foot over the threshold of the door to prevent it from being closed on him by MB. The primary judge rejected that submission, finding that Senior Constable Burley was entitled to enter the premises to maintain the arrest and to prevent a breach of the peace that was likely to be committed given MB’s behaviour towards him.

68. The primary judge also found that the applicant voluntarily consented to both Senior Constable Burley and Provisional Constable Tallon entering the property, by her use of the personal pronoun “you” which includes both the singular and plural. She later consented to the presence of the back-up police, as evidenced by her active engagement with Senior Constable Burley’s supervisor.

Misfeasance in public office

69. The primary judge stated that there are the following five (conjunctive) elements of the tort of misfeasance in public office (citing Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 370):

“(i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff.”

70. There was no dispute that the third and fourth elements were established. Focus was directed to elements (i), (ii) and (v).

71. As to the first of those elements, the applicant submitted the “child removal” act by Senior Constable Burley was not authorised by the Family Court orders and was therefore contrary to s 65M of the Family Law Act1975 (Cth) (“Family Law Act”). The primary judge set out the terms of the Family Court orders (see at [42] above) and reasoned that, given the applicant was under arrest, Order 1.4 of those orders empowered GM to decide where the children would live.

72. The primary judge added that he did not accept that Senior Constable Burley effected a “child removal”. It is well to set out PJ[120] because of its significance to the question of whether there is an inconsistency between the Family Court orders and Senior Constable Burley’s conduct in placing the children into their father’s care (emphasis added):

I also do not accept that Senior Constable Burley effected a ‘child removal’. Senior Constable Burley in making arrangements to facilitate the ongoing care of the children was not exercising his LEPRA powers. He also was not on any view of it removing the children. Rather his actions were incidental to the exercise of the LEPRA power of arrest. Such actions were of a type which are statutorily recognised as part of the mission and function of the New South Wales Police Force (see s 6 (2)(c)) of the Police Act 1990).

73. As to the second element of the tort, the applicant submitted to the primary judge that Senior Constable Burley’s actions were done with “untargeted malice”, as evidenced by Senior Constable Burley’s statements as to AD’s father behaving in an “inappropriate” way and that he was “happy” for the children to go into GM’s care.

74. The primary judge held that Senior Constable Burley was not acting with malice nor was he recklessly indifferent to the availability of power to support his conduct. It is well to set out PJ[127]:

As I have earlier indicated, I also do not accept that in making the arrangements which he did, Senior Constable Burley was purporting to exercise his duty as a police officer. In arresting the plaintiff he was exercising a LEPRA power, but in his consideration of what he considered to be in the best interests of the children in the circumstances, he was dealing with the consequences of the exercise of that LEPRA power. I also do not accept that Senior Constable Burley’s actions constituted a removal of the children as the plaintiff pleads. As I have earlier indicated, I consider that all Senior Constable Burley did was to facilitate the transfer of custody of the children to a person legally entitled to such custody.

75. The primary judge described the allegation of misfeasance in public office as very serious and noted that the Court should be slow to make such a finding (citing Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [60] per Gummow, Hayne, Heydon and Crennan JJ).

76. In rejecting the applicant’s complaints that Senior Constable Burley had acted with reckless indifference to the availability of power to support his conduct and had abused his office, the primary judge said that Senior Constable Burley had “demonstrated a commendable, caring attitude towards the plaintiff’s children, which manifested itself in him by making arrangements for their care, after AD’s arrest”.

77. As to the fifth element of the tort, the applicant submitted that Senior Constable Burley’s actions caused her loss as she had to go to Court to achieve the children’s return. The primary judge considered that the requisite causal link was not present. The incurring of legal fees was a consequence of the applicant’s decision to resort to litigation in responding to GM’s failure promptly to return the children, and Senior Constable Burley would have had no reason to believe that GM would not return the children to her custody after the arrest. Moreover, his Honour viewed the incurring of legal fees relating to custody of her children as part of an ongoing dispute between her and GM as to access arrangements.

78. Finally, as to the applicant’s separate contention that she suffered loss as she was physically ill during the arrest process, the primary judge found that this was not shown to be consequential upon Senior Constable Burley’s actions in relation to the children, as distinct from the stress of her arrest.

Damages

79. The primary judge concluded that each cause of action was unsuccessful but, for completeness, made an assessment of damages. The primary judge assessed damages for the false imprisonment claim in the sum of $10,000, assessed that no more than nominal damages would be awarded for the trespass claim and found it impossible to assess damages for the misfeasance in public office claim in view of his findings.

Appeal Grounds

80. The applicant’s summons seeking leave to appeal, filed on 8 December 2022, has six proposed grounds of appeal. Proposed grounds 1 to 3 claim that the primary judge erred in dismissing the three causes of action raised by the applicant.

81. As to the rejection of the claim for false imprisonment, the applicant claimed that the primary judge had applied an incorrect test in concluding that the arrest was lawful, had made an assessment of GM’s injuries that did not amount to grievous bodily harm and did not sustain a finding that the arrest was lawfully justified under s 99(1)(a) of the LEPR Act and had erred in finding that the arrest was lawfully justified under s 99(1)(b) of the LEPR Act.

82. As to the claim in trespass, the applicant claimed that the primary judge erred in finding that the applicant had consented to the back-up police officers entering her home.

83. As to the claim for misfeasance in public office, the applicant mounted multiple arguments, including that the primary judge erred in finding that Senior Constable Burley had lawful authority to remove the children from their home and erred in finding that Senior Constable Burley was not recklessly indifferent to the availability of lawful power to remove the children. The applicant also claimed that the primary judge erred in respect of the issue of whether she suffered loss or harm as a result of Senior Constable Burley’s actions.

84. Proposed ground 4 claims that the primary judge erred in his assessment of damages, including an allegation of manifest inadequacy.

85. Proposed ground 5 claims that the primary judge erred by failing to give reasons addressing evidence which was inconsistent with his Honour’s findings and in failing to give reasons for rejecting such evidence.

86. Proposed ground 6 (which relates to proposed ground 2) claims that the primary judge erred in failing to draw Jones v Dunkel inferences in relation to the failure of the respondent to call Sergeant Michael Cotton, Probationary Constable Tallon and the other police officers who entered the applicant’s home, and in failing to give reasons for not doing so.

87. On the basis that the primary judge had found that Senior Constable Burley’s actions, in transferring the care of the children from their mother to their father, were authorised as they were incidental to the police powers of arrest under s 99 of the LEPR Act and were statutorily recognised as part of the mission and functions of the NSW Police Force under s 6(2) of the Police Act 1990 (NSW) (“Police Act”), the applicant issued notices under s 78B of the Judiciary Act 1903 (Cth), claiming that no power under s 6(2) of the Police Act authorised Senior Constable Burley’s actions, because that would involve an inconsistency between such a power and s 65M of the Family Law Act so as to engage s 109 of the Constitution. In response the Attorney-General for New South Wales intervened in the proceeding and became the second respondent.

88. In an annexure to her written submissions in chief, the applicant challenged the following six factual findings by the primary judge:

1. The finding at PJ[14] that detectives concurred with Senior Constable Burley’s judgment to arrest and charge the applicant with the two offences, having regard to the information given to the detectives regarding GM’s injuries and the fact that Senior Constable Burley did not seek advice from the detectives as to the need to arrest the applicant.

2. The primary judge’s findings at PJ[23] and [106] regarding the applicant’s consent for the back-up police officers to enter the premises.

3. The primary judge’s finding at PJ[130] in which he considered that Senior Constable’s actions in arranging for the children’s care demonstrated a commendable and caring attitude in circumstances where the applicant claims that the children were removed by an invalid or unauthorised act.

4. The primary judge’s finding at PJ[136] that Senior Constable Burley had no reason to believe that GM would not return the children to AD’s custody after she was released, particularly having regard to the fact that Senior Constable Burley initiated the ADVO which prevented the children from being reunited with their mother until 30 April 2019, when the terms of the ADVO were varied.

5. The finding at PJ[136] that there was no causal link between Senior Constable Burley’s conduct and the applicant’s claim that she suffered a loss in respect of the legal fees she incurred in seeking to have her children returned, in circumstances where the applicant was not challenged as to her evidence of incurring legal fees.

6. The primary judge’s finding at PJ[138] that there was no causal link between the applicant being physically ill and Senior Constable Burley arranging for the children to be transferred to GM in circumstances where MB’s evidence established that the cause of the applicant’s illness and disability following the events on 22 April 2019 was because of the loss of her children, and neither the applicant nor MB was challenged as to AD’s incapacity during the period 22 April 2019 and 30 April 2019 when her children were returned to her.

The parties’ submissions

89. The applicant and the first respondent made detailed written and oral submissions on both the question of leave to appeal and any substantive appeal (the two matters were heard concurrently). The applicant and the second respondent filed written submissions on the Constitutional issue. Those parties were content to rely upon their written submissions on that matter.

90. To avoid adding unduly to the length of these reasons for judgment, I will address the parties’ primary submissions below.

Consideration and determination

Relevant statutory provisions

91. It is convenient to identify and summarise the primary relevant provisions relating to police powers, duties and responsibilities.

92. The long title to the LEPR Act states that the Act is one “to consolidate and restate the law relating to police and other law enforcement officers’ powers and responsibilities; to set out the safeguards applicable in respect of persons being investigated for offences; to repeal certain Acts and to consequentially amend other Acts; and for other purposes”.

93. In s 3 of the LEPR Act, “function” is defined to include a power, authority or duty.

94. Section 4 of the LEPR Act provides as follows:

4   Relationship to common law and other matters

(1)   Unless this Act otherwise provides expressly or by implication, this Act does not limit—

(a)   the functions, obligations and liabilities that a police officer has as a constable at common law, or

(b)   the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2)   Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

95. Section 7 of the LEPR Act provides that nothing in the Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any Part of this Act. It is also relevant to set out the note to that provision.

7   Provisions in this Act

Nothing in any Part of this Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any other Part of this Act.

Note—

The general functions of police officers and other members of the NSW Police Force, and matters relating to police discipline, are dealt with in the Police Act 1990. For other Acts containing significant police and law enforcement powers, see Schedule 1.

96. Although it is provided in s 3(3) of the LEPR Act that notes in the text of that Act do not form part of the Act, the Note to s 7 can be used as an aid to statutory construction (see further at [143] below).

97. Part 8 of that Act provides for powers relating to arrest, including s 99, which at the relevant time relevantly provided:

99 Power of police officers to arrest without warrant

(1)    A police officer may, without a warrant, arrest a person if:

(a)    the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b)    the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

(i)    to stop the person committing or repeating the offence or committing another offence,

(ii)    to stop the person fleeing from a police officer or from the location of the offence,

(iii)    to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv)    to ensure that the person appears before a court in relation to the offence,

(v)    to obtain property in the possession of the person that is connected with the offence,

(vi)    to preserve evidence of the offence or prevent the fabrication of evidence,

(vii)    to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii)    to protect the safety or welfare of any person (including the person arrested),

(ix)    because of the nature and seriousness of the offence.

…

(3)    A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note—

The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.

…

98. Turning now to the Police Act, s 3(2) provides that, in that Act, a reference to a function includes a reference to a power, authority and duty. A reference to the exercise of a function also includes, where the function is a duty, a reference to the performance of the duty.

99. Part 2 deals with the NSW Police Force and various structural matters. They include establishing the Force (s 4) and specifying the composition of the Force (s 5). Section 6 describes the “mission” and “functions” of the Force (noting in particular s 6(2)):

6   Mission and functions of NSW Police Force

(1)    The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2)    The NSW Police Force has the following functions—

(a)    to provide police services for New South Wales,

(b)    to exercise any other function conferred on it by or under this or any other Act,

(c)    to do anything necessary for, or incidental to, the exercise of its functions.

(3)    In this section—

police services includes—

(a)    services by way of prevention and detection of crime, and

(b)    the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c)    the provision of essential services in emergencies, and

(d)    any other service prescribed by the regulations.

(4)    A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5)    The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.

(6)    Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

100. As noted above, there is an issue as to whether s 6(2) provides a statutory power for Senior Constable Burley’s actions in transferring the care of the children to their father after effecting AD’s arrest.

101. In Wilson v State of NSW (2001) 53 NSWLR 407; [2001] NSWSC 869 (which concerned an action for damages for negligence against a police officer), O’Keefe J at [41] described ss 6 and 7 as “aspirational in nature” (to similar effect see Rickard v State of New South Wales [2010] NSWSC 151 at [49] per RA Hulme J (“Rickard”)). O’Keefe J described s 6(2) as indicating how the mission or objective of the Force may be fulfilled or achieved, while s 7 was described as an indication of expectations and stated “the ideal”.

102. Section 7 of the Police Act sets out what is described as a statement of values of members of the NSW Police Force. It requires each member to act in a manner which accords with various stated values, including placing integrity above all other matters, upholding the rule of law, preserving the rights and freedoms of individuals and ensuring that authority is exercised responsibly.

103. It is also relevant to note s 14 of the Police Act which deals with additional functions of police officers and clarifies the relationship between s 14 and provisions in the LEPR Act:

14 Additional functions of police officers

(1)    In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State.

(2)    Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

Leave to appeal

104. The applicant should have leave to appeal in respect of ground 1, which relates to the primary judge’s rejection of her claim for false imprisonment (because it raises important issues of principle regarding s 99 of the LEPR Act), but for reasons which follow that ground should be dismissed. For the reasons which also follow, I consider that leave to appeal should be refused in respect of proposed grounds 2 to 6 because they lack sufficient prospects.

Grounds (or proposed grounds) of appeal

105. It is convenient to deal with the first four grounds (or proposed grounds) of appeal by reference to the three causes of action.

(a) False Imprisonment

106. This claim for damages turns on whether or not AD was lawfully arrested. It was common ground that the first respondent carried the onus of establishing that the arrest was lawful.

107. As noted above, the applicant claimed that the primary judge erred in finding that both limbs in s 99(1)(a) and (b) of the LEPR Act were satisfied. As to the first limb, the applicant contended that the evidence contradicted the primary judge’s finding that Senior Constable Burley had reasonable grounds for suspecting that AD had committed the offence of grievous bodily harm. She contended that it was necessary to show “really serious bodily harm” (citing Swan v R [2016] NSWCCA 79 at [56]-[71] (“Swan”)), and that evidence establishing mere “serious bodily harm” was inadequate.

108. In Swan, Garling J (with whom RA Hulme and Wilson JJ relevantly agreed) referred to the inclusive definition of “grievous bodily harm” in s 4 of the Crimes Act and noted that, while it included “any permanent or serious disfiguring of the person”, it should be given its natural and ordinary meaning. His Honour noted that the offences of grievous bodily harm and actual bodily harm involved offences of different levels of seriousness, which is reflected in their significantly different maximum terms of imprisonment. His Honour added at [57] that grievous bodily harm referred to a more serious form of injury than actual bodily harm. Reference was then made to various English and Australian decisions in support of the proposition that grievous bodily harm means “really serious bodily injury”. His Honour added at [62] that, in one sense, describing grievous bodily harm as “really serious bodily injury” does little to elucidate the meaning of the phrase, but the addition of the word “really” to the phrase “serious injury” indicates that the phrase refers to injuries which are considerably more serious than those which constitute “actual bodily harm”. At [65] his Honour noted that questions of fact and degree are involved in determining what constitutes really serious bodily injury. At [71], Garling J summarised the position as follows:

To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase “grievous bodily harm”:

(a)    It is to be interpreted according to its natural and ordinary meaning;

(b)    On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;

(c)    there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;

(d)    not every injury is capable of amounting to grievous bodily harm;

(e)    only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.

109. I am not persuaded that the primary judge erred in accepting that there were reasonable grounds for Senior Constable Burley’s suspicion that AD had committed this particular offence. The focus of the attack below on this aspect of Senior Constable Burley’s evidence related to the fact that, when he arrested AD, an MRI was still awaited which would demonstrate the extent of the injuries to GM’s eye. As noted above, the primary judge pointed to other materials which were available to Senior Constable Burley at the time of the arrest from which he could assess the seriousness of GM’s eye injuries. Those materials comprised the photos of GM’s injured eye, the fact that Senior Constable Burley had personally seen the injuries on the night of 7 April 2019 and subsequently reviewed GM’s statement, as well as his reviewing the various sources of video footage of the assault.

110. It is true that at PJ[73], the primary judge found (in the light of those materials) that they “overwhelmingly established the conclusion that the eye injuries were serious”, and that his Honour did not use the adjective “really serious”. For the following reasons, however, I do not regard that omission as significant or fatal.

111. First and foremost, it is notable that Senior Constable Burley was asked in cross-examination whether, to his knowledge, “grievous bodily harm” means “really serious harm”, to which he answered: “Correct”. As noted above, the primary judge described Senior Constable Burley as “a witness of truth, upon whose evidence I could confidently rely”. Impliedly, this included Senior Constable Burley’s unequivocal response to the question.

112. Secondly, I am not persuaded that the primary judge was unaware of the fact that the offence of grievous bodily harm requires injuries at the high end of the spectrum. This is implicit in the significance which his Honour attached to the various materials which were available to Senior Constable Burley, which indicated that the injuries to GM’s eye fitted that description.

113. Thirdly, the primary judge’s failure to make any express reference to “really serious” injury in rejecting the applicant’s claims concerning s 99(1)(a) may simply reflect the fact that the applicant’s challenge below to Senior Constable Burley’s state of satisfaction under s 99(1)(a) did not focus on the presence or absence of evidence which satisfied that particular phraseology. Rather, the challenge was directed to Senior Constable Burley arresting AD before he had obtained all relevant medical evidence. The applicant made no submission below that the question of whether there were reasonable grounds for the suspicion required under s 99(1)(a) turned on there being evidence at the time of arrest that GM had suffered a really serious injury as opposed to an injury of such a serious nature as to fall within the ordinary meaning of “grievous bodily harm”.

114. In all these circumstances, no appellable error is demonstrated in respect of this aspect of s 99(1)(a).

115. The applicant raised several matters in support of her challenge to the primary judge’s finding that the arrest was lawfully justified under s 99(1)(b).

116. First, the applicant claimed that the primary judge erred in not dealing with the two offences separately in determining whether it was reasonably necessary to arrest AD. This argument is based more on form than substance. It is true that the primary judge’s reasons in relation to this matter appear under the heading: “The Seriousness of the Offence”. But it is plain from the paragraphs that follow that his Honour directed his attention to the fact that he was dealing with two offences (see, for example, PJ[88] and [91]). Moreover, consistently with the language of s 99(1)(b)(ix), the primary judge directed his reasoning not only to the seriousness of the offences, but also to their nature. This included the fact that GM’s injuries were the same in respect of both the offences.

117. It was also relevant to the nature of the offences that both occurred in the context of a domestic violence setting, which can involve serious offences (see State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [69]). Senior Constable Burley considered (and reasonably so) that both GM and the children needed protection from further incidents of a similar nature (as referred to in s 99(1)(b)(viii)).

118. Secondly, the applicant contended that the primary judge applied the wrong test in applying the concept of Wednesbury unreasonableness to the two limbs in s 99(1)(a) and (b). The applicant claimed this involved error because the Wednesbury unreasonableness head of review applies to the exercise of discretion. The applicant made clear in oral address that her challenge both at trial and on the appeal did not relate to the exercise of the residual discretion conferred by s 99 (as reflected in the word “may” in the chapeau), which empowers a police officer not to arrest even if the pre-conditions exist. Thus she said Wednesbury unreasonableness had no application here.

119. The primary judge made several references to Wednesbury unreasonableness (see PJ[81], [85] and at [102]). Although the concept of Wednesbury unreasonableness generally arises in the context of judicial review of the exercise of a statutory discretionary power (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [64]-[67] per Hayne, Kiefel and Bell JJ (“Li”)), the concept is sometimes employed in a challenge to the validity of a discretionary decision. Hence, in Li at [68] the plurality said:

… The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury…

120. The primary judge may have had this aspect of Wednesbury unreasonableness in mind. Although the applicant contended below that it would be wrong to determine the validity of the arrest solely on Wednesbury unreasonableness principles, an alternative submission was then put that “even if Wednesbury principles apply at that stage [being the final step in the decision to arrest], such principles only operate when the discretion is exercised ‘within the four corners’ of the discretion” (footnote omitted). This reference to Wednesbury unreasonableness may have informed his Honour’s reasons for judgment when he rejected the applicant’s claim that the arrest was unlawful.

121. As to the applicant’s complaint regarding the alleged need for there to be proportionality between the sanction of arrest and the attainment of the outcomes contemplated by s 99(1)(b), the primary judge addressed that complaint and found that Senior Constable Burley had appropriately considered it (see PJ[83] and [97]-[98]).

122. Thirdly, the applicant contended that the primary judge erred in finding that Senior Constable Burley acted lawfully under s 99(1)(b) in arresting the applicant so that she could be brought before a Court at the earliest possible opportunity. The primary judge explained at PJ[96]-[97] why Senior Constable Burley considered that a CAN would not achieve this objective. Contrary to the applicant’s contention, I consider the primary judge was correct to accept Senior Constable Burley’s explanation on this issue, with particular regard to the terms of s 99(1)(b)(iv), (viii) and (ix), and his awareness of and desire to deal with the seriousness of domestic violence incidents.

123. Fourthly, there is no substance in the applicant’s claim that the primary judge erred in finding at PJ[14] that, before arresting AD, Senior Constable Burley consulted with detectives, who concurred with his judgment. The applicant complained that limited information was given to the detectives regarding the nature and extent of GM’s injuries. But in determining the lawfulness of AD’s arrest, attention has to be focussed on the state of mind of Senior Constable Burley as the arresting officer and not the state of mind of the detectives. I have explained above why I reject the applicant’s contention that there was inadequate material available to Senior Constable Burley to enable him to conclude that GM’s eye injuries were sufficiently serious to warrant AD being arrested for grievous bodily harm.

120. Nor is there any substance in the applicant’s complaint that Senior Constable Burley did not seek any advice from the detectives concerning the need to arrest AD. Again it is Senior Constable Burley’s state of mind and actions which are relevant in determining whether there was compliance with s 99(1)(b), not that of the detectives.

121. For these reasons I discern no appellable error in the primary judge concluding that the arrest was lawful.

(b) Trespass

126. For the following reasons, I do not consider that any of the three bases upon which the applicant claimed error on the part of the primary judge in rejecting the trespass claim is sufficiently arguable to warrant a grant of leave to appeal. It is important to emphasise at the outset that the applicant’s case in trespass on appeal was directed not to the first two police officers who attended, but to the back-up police officers who responded to Senior Constable Burley’s call for assistance. As noted above, this call was made after there was a confrontation between MB and Senior Constable Burley at the front door.

127. There are insufficient prospects to grant leave in respect of the applicant’s claim that the primary judge reversed the proper onus by requiring her to establish lack of consent and her claims that the primary judge made erroneous factual findings in concluding that AD consented to the attendance of the back-up police. His Honour found at PJ[59] that, having reviewed the police body worn camera footage (which was also in evidence on the appeal), the applicant voluntarily consented to the entry of both the police who first attended the premises as well as the back-up police. The video footage supports the primary judge’s finding at PJ[23] that AD told the back-up police that she had no problem with them being in her house. Moreover, the primary judge added at PJ[107] that AD’s consent was strongly suggested by the fact that she actively engaged with Senior Constable Burley’s supervisor (who was one of the back-up police) in attempting to dissuade her from supporting Senior Constable Burley’s plan to give GM temporary care of the children. It is also well to bear in mind that although the primary judge stated at PJ[106] that AD’s second expression of consent occurred after the back-up police had arrived, they had entered the house by the open front door.

128. Having regard to the evidence, the applicant has failed to establish any sufficiently arguable error concerning the primary judge’s findings on consent and onus.

(c) Misfeasance in public office

129. As noted above at [69] only three of the five elements in this tort are contested. I shall address each of these in turn in explaining why the applicant has insufficient prospects to obtain leave to appeal in respect of this matter.

130. As each of the five elements in the tort of misfeasance of public office are conjunctive, the rejection of any one of the three contested elements is necessarily fatal to this aspect of the applicant’s appeal.

Invalid or unauthorised act

131. As to the element which requires there to be an invalid or unauthorised act, the applicant contended that the primary judge erred in finding that Senior Constable Burley had lawful authority to effect the “removal” of the children from their home. The applicant contended that Senior Constable Burley’s actions were not incidental to AD’s arrest nor statutorily recognised by s 6(2)(c) of the Police Act (citing Hutchinson v State of New South Wales [2019] NSWCA 91 at [66] (“Hutchinson”) and State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 at [34] and [62] (“Bouffler”)). Moreover, the applicant contended that if s 6 provided a source of authority for Senior Constable Burley’s actions, this would be in conflict with relevant provisions of the Family Law Act and the operation of s 109 of the Constitution would be enlivened.

132. The applicant also contended that the primary judge mistakenly elided “parental responsibility” and Order 3 of the Family Court orders with the limited qualification in Order 4 that the children would spend time with their father, as agreed. She contended that even if those orders empowered GM to decide where the children lived while the applicant was under arrest, it was not explained how GM’s authority could be exercised by Senior Constable Burley.

133. Finally, the applicant argued that the primary judge erred in concluding that the children were not “removed” by Senior Constable Burley, particularly in circumstances where Senior Constable Burley conceded in cross-examination that he decided to remove the children which resulted in them leaving their home.

134. In response, the first respondent argued that the primary judge did not make any specific finding that, in handing the children over to their father, Senior Constable Burley was exercising a statutory power under s 6(2)(c) of the Police Act (referring to PJ [120]).

135. Secondly, the first respondent submitted that Senior Constable Burley’s actions in respect of the children were incidental to AD’s arrest and that the primary judge’s finding to that effect at PJ[120] was not inconsistent with either Hutchinson or Bouffler. This is because it is claimed that Hutchinson did not resolve any relevant point of principle and Bouffler is not authority for any relevant principle.

136. Thirdly, the first respondent challenged the applicant’s contention that Senior Constable Burley had conceded that he removed the children. Rather, there was no “removal” as the children simply came into the care of their father lawfully.

137. For the following reasons, the applicant has failed to establish any appellable error in the primary judge’s reasoning in concluding that Senior Constable Burley’s actions were neither invalid or unauthorised. First, his Honour was correct at PJ[120] to characterise the actions taken by Senior Constable Burley in relation to the care of the children as “incidental to the exercise of the LEPRA power of arrest”. It is a well-settled principle of construction that the conferral of an express statutory power carries with it an implied incidental power to do everything necessary to give effect to, or facilitate the exercise of, the express statutory power (see, for example, JKLby his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94 at [50] per Bell P, with whom Macfarlan and Meagher JJA agreed (“JKL”)). Indeed, at least in a Constitutional setting, Dixon J went a step further in British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44 at 274 when, referring to the fundamental principle of constitutional law “that everything necessary to the exercise of a power is included in the grant of a power”, his Honour said that the principle goes further than “necessary”. Justice Dixon then referred to Lord Selborne’s observations in Small v Smith (1884) 10 App Cas 119 at 129 that “things which are incidental to it, and which may reasonably and properly be done and against which no express prohibition is found, may and ought, prima facie, to follow from the authority for effectuating the main purpose by proper and general means”.

138. Lord Selborne’s observations apply in the circumstances here. Senior Constable Burley’s actions in arranging for the children to be taken into their father’s care while their mother was taken into custody for the purposes of processing her arrest were actions which were incidental to that arrest and were actions which were taken in the absence of any express prohibition.

139. I do not consider that Senior Constable Burley’s actions were prohibited by the Family Court orders. Those orders did not prohibit the children spending time with their father. Rather, express provision was made in Order 4 for them to spend time with him “at all times as can be agreed between the parties”. Contrary to the applicant’s contention, I do not regard this order as conferring on her a unilateral power to prevent the children from spending time with their father. The order implicitly contemplates that the parents will cooperate and act reasonably and responsibly in agreeing the times when the children will be with their father (which only pejoratively could be described as “removal”). The Family Court orders did not contemplate the circumstances which occurred here, namely AD being arrested and taken to the police station so that her arrest could be processed. It was patent that the children could not physically remain with their mother while her arrest was being processed. It is also relevant to note that Senior Constable Burley was well aware that, notwithstanding AD’s protests concerning the circumstances in which her elder daughter saw pornography on her father’s phone, GM continued to have periodic custody of the children after that event came to light.

140. Although I consider that the primary judge did not err in concluding that Senior Constable Burley’s actions were incidental to the exercise of his statutory power of arrest under s 99 of the LEPR Act, I do not consider that such actions involved the exercise of a statutory power under s 6(2)(c) of the Police Act. It is far from clear, however, that the primary judge viewed s 6(2)(c) as a statutory source of power for those actions. There is arguably some ambiguity in the final sentence of PJ[120] (which is set out at [72] above). The better view is that which is advanced by the first respondent, namely that the primary judge made no unequivocal finding that s 6(2)(c) provided an independent source of statutory power for those actions. This is reflected in the primary judge’s reference in PJ[120] to the actions being of a type which are “statutorily recognised” as part of the NSW Police Force’s mission and function (referring to s 6(2)(c)).

141. For completeness, however, I shall explain why I do not regard that provision as providing an independent and standalone statutory source of substantive power. Significantly, s 6 appears in Pt 2 of the Police Act. That Part deals with what may be described as high level structural or organisational issues relating to the NSW Police Force. Part 2 contains provisions which establish the NSW Police Force (s 4), provides for the composition of the NSW Police Force (s 5) and contains institutional matters relating to the Commissioner and other persons who hold positions in the NSW Police Force (ss 8 to 13). Section 6 is headed “Mission and functions of NSW Police Force” and s 7 is headed “Statement of values of members of NSW Police Force”. Sub-section 6(2) specifies various functions of the NSW Police Force and sub-paragraph (c) provides that the Force has functions “to do anything necessary for, or incidental to, the exercise of its functions”. As noted s 3(2) provides that, in the Police Act, “a reference to a function includes a reference to a power, authority and duty”. That does not mean, however, that s 6(2) should be construed as conferring on the NSW Police Force substantive powers in relation to what may be described as everyday operational matters. Those powers are to be found elsewhere, even though they are given general statutory recognition in s 6(2).

142. Section 6 is directed to higher level institutional matters of structure and organisation. This is reflected not only in the general subject matter of Pt 2 of the Police Act, but also in the specific terms of s 6(6) (see [99] above). They make clear that nothing in s 6 confers upon NSW Police a “power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002” (emphasis added). The emphasised words are important because they confirm that s 6 is directed to high level institutional matters, as opposed to what may be described as the powers and responsibilities of members of the NSW Police Force in everyday policing. Those matters principally (but not exclusively) are set out in the LEPR Act (noting also s 4 of that Act which provides that the Act does not limit the functions, obligations and liabilities that a police officer has a constable at common law or limit other functions that a police officer may lawfully exercise as an individual and not as a police officer).

143. The notion that Pt 2 (and s 6 in particular) of the Police Act contains provisions which are relevant to the “general functions” of police officers and other members of the NSW Police Force is further confirmed by the Note to s 7 of the LEPR Act (see at [95] above). Having regard to s 3(3) of the LEPR Act, such notes do not form part of that Act, but that does not prevent them from being used as an aid in determining the scope of an expression used in a relevant statutory provision, subject to well-established qualifications: see P Herzfeld and T Prince, Interpretation (2^nd ed, 2020, Thomson Reuters) at [5.130].

144. As noted at [101] above, s 6 of the Police Act has been described in some cases as “aspirational”. With respect, while that may be one way of characterising the provision, I prefer to view it as a provision which deals with structural and organisational matters relating to the NSW Police Force and the general functions of police officers, as opposed to operational policing activities and powers.

145. Finally, I do not consider that Hutchinson or Bouffler assist the applicant. As to Hutchinson, Leeming JA (who gave the lead judgment) noted at [66] that the primary judge there had accepted that s 6 of the Police Act was an alternative source of power to that conferred by s 186 of the LEPR Act in circumstances where Mr Hutchinson was prevented by police from crossing Oxford Street after the Mardi Gras parade had finished. After stating that this issue did not arise on appeal, Leeming JA then made the following obiter observations:

However, it may very much be doubted that s 6 is relevant. That section identifies the “mission” of the NSW police force, and identifies certain “functions” which the force has. The “NSW Police Force” is established by s 4 of the Police Act 1990 (NSW) but it is not a separate legal person. Instead, it is a group of natural persons: the Commissioner, NSW Police Force senior executives, and all other police officers and non-executive administrative employees employed under the Act: s 5 and see Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [51]. To say that a numerically large group of persons has a “function” is not ordinarily apt to confer powers and immunities upon the individual members of that group. Indeed, the generality of s 6 stands in marked contrast with the specific authorisation later LEPRA. It would be remarkable if, in some case, where the specific provisions were insufficient to give rise to a defence of lawful authority to an individual police officer, the general provision of s 6 conferring a “function” upon the NSW Police Force would do so.

146. These observations highlight the generality of the wording of s 6 and its structural character in conferring functions upon the NSW Police Force.

147. As to the applicant’s reliance on Bouffler, that case does not stand for the proposition that s 6 of the Police Act confers a substantive power. As the Court (Beazley ACJ, Ward and Gleeson JJA) said at [62] with reference to the State’s emphasis in that case on ss 6 and 201 of the Police Act (as well as s 230 of the LEPR Act) (emphasis added):

As already explained, those provisions underpin the nature of the functions that police officers perform and the necessity for that work to be carried out as part of a disciplined and hierarchical structure, whilst recognising that force may need to be used in doing so. However, there is nothing in those provisions that permits an activity to be carried out that is not lawful.

Act done maliciously

148. As to the element of the tort which requires that the relevant act be done maliciously or with untargeted malice through reckless indifference, the applicant challenged the primary judge’s finding that Senior Constable Burley demonstrated a “commendable, caring attitude” towards the children. The applicant claimed the primary judge failed to consider other relevant matters, which caused a failure in the primary judge’s fact finding. The applicant contended that Senior Constable Burley was recklessly indifferent to the invalidity of, and lack of power for, his actions in removing the children. Moreover, the applicant contended that the primary judge failed to give reasons for not finding that Senior Constable Burley was recklessly indifferent to the unavailability of any power or authority to remove the children.

149. In response, the first respondent emphasised the importance of the primary judge’s advantage in viewing the witnesses give evidence and also that his Honour was not obliged to address every piece of evidence. Rather, the primary judge made all necessary findings (citing Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349). In doing so, his Honour rejected the applicant’s evidence which was advanced in contradiction to Senior Constable Burley’s evidence (which the primary judge strongly preferred).

150. The first respondent’s submissions as to the primary judge’s reasons for finding that there was a lack of malice should be accepted. The primary judge had a distinct advantage in seeing Senior Constable Burley give evidence. As has been emphasised, he found him to be a witness of truth upon whose evidence he could confidently rely. This positive credit finding was made against a background of a lengthy and searching cross-examination of Senior Constable Burley, including on the issue of his authority to act as he did in relation to the children.

151. It is true that at one point, when asked what lawful authority he was exercising in regard to refusing to transfer the children to AD’s father, Senior Constable Burley said “I don’t know”. I do not view that response as a concession by Senior Constable Burley that he lacked any authority. He immediately added: “I felt it was inappropriate the way that he [i.e. AD’s father] was carrying on outside to take care of children that are – were traumatised and needed assistance of obviously coping through the incident”. Thus his response to the question was in the specific context of why he did not permit the children to be taken into their grandfather’s care. Moreover, having regard to the context, I would not view Senior Constable Burley’s response as demonstrating a reckless indifference on his part to his authority. Rather, I regard his use of the phrase “I don’t know” as an expression used by him effectively to fill in time while he thought more about the question. That is not an unusual use of that expression.

152. None of the other matters raised by the applicant displace the primary judge’s reasoning and conclusion that Senior Constable Burley acted without malice and in a reasonable and responsible fashion in making appropriate arrangements for the welfare of the children. Senior Constable Burley was mindful of the need for the children to be taken into the care of a responsible person before he even attended AD’s premises for the purpose of arresting her. This is reflected in the fact that he arranged for the children’s father to be available near the children’s home on the evening of 7 April 2019 so that he could take them into his care.

Act causing loss or harm to the plaintiff

153. As to the element of the tort which requires the plaintiff to establish that the impugned conduct has caused the plaintiff loss or harm, the applicant contended that the primary judge applied an incorrect test and erred in finding that there was no causal link between Senior Constable Burley’s conduct and her loss or harm. She submitted that there was no need for her to prove that Senior Constable Burley’s conduct was calculated to produce loss to her. She emphasised that Senior Constable Burley had reason to believe that the children would not be returned to her after the arrest process was completed given that Senior Constable Burley initiated the procedure which resulted in the making of the provisional ADVO which had the effect of denying the applicant care and custody of her children until it was modified (see at [54] above).

153. The applicant complained that it was wrong of the primary judge to find at PJ[136] that there was no causal link between Senior Constable Burley’s actions and the applicant’s claimed loss in circumstances where she had told Senior Constable Burley that if he carried out his plan to give the care of the children to their father she would have to go to Court to have them returned.

154. In response, the first respondent submitted that it was irrelevant whether the impugned conduct was calculated to produce injury or loss because Senior Constable Burley acted in good faith and made an honest attempt to discharge the functions and duties of his office. In addition, the first respondent contended that the legal fees incurred by the applicant were not consequential upon her arrest but rather were the product of an existing dispute with GM relating to child custody. As to the applicant’s claim that she suffered physical harm because she was physically ill, the first respondent contended that it was open to the primary judge to reject that claim in the absence of medical corroboration and to find that her physical illness was consequential upon her arrest, having regard to his Honour’s strong adverse credit findings.

155. No appellable error has been established with regard to the primary judge’s findings and analysis regarding the absence of a causal link between Senior Constable Burley’s actions and any loss or harm suffered by the applicant. It was correct of the primary judge to conclude as he did at PJ[137] that the better view of the evidence was that the incurring of legal fees by AD to have the children returned to her custody was part of the ongoing dispute between the parents as to access arrangements. AD told Senior Constable Burley at the time of the arrest that she had been involved in mediation on the issue.

156. As to the applicant being physically ill and severely depressed, the applicant has not established error in the primary judge’s finding at PJ[139] that the applicant had failed to establish a causal link between these matters and Senior Constable Burley’s actions in having the children transferred to their father as opposed to the stress of her arrest.

157. Merely because neither the applicant nor MB were challenged as to the applicant’s incapacity during the period of her estrangement from her children did not prevent the primary judge from reasoning as he did, particularly where his Honour had the advantage of hearing that evidence. Although no adverse credit finding was made in relation to MB (as opposed to AD), the primary judge was correct in making the relevant findings. The applicant’s claims were unsupported by medical evidence. Moreover her distress caused by her arrest may also have been exacerbated by her reaction upon learning that the children were named in the ADVO.

Damages

159. As noted, the applicant contended, under proposed ground 4, that the primary judge’s assessment of damages for false imprisonment was manifestly inadequate. She also contended that the primary judge erred in failing to assess damages for the claims of trespass in relation to the back-up officers and misfeasance in public office. The applicant urged this Court to re-exercise the primary judge’s contingent assessment of damages with reference to the schedule of damages which she provided at trial. Alternatively, the applicant asked that the assessment of damages be remitted to a judge other than the primary judge.

160. In response, the first respondent submitted that no appellable error has been demonstrated in respect of the primary judge’s assessment of damages, including his Honour’s finding that damages for misfeasance in public office could not be assessed.

161. Having regard to the rejection of all the other proposed grounds of appeal on liability, this matter does not strictly arise. For completeness, however, I am not persuaded that the applicant has not demonstrated any arguable error of the House v King kind so as to warrant leave being granted in respect of this proposed ground.

Proposed grounds 5 and 6

162. The applicant has failed to demonstrate any arguable error in respect of proposed grounds 5 and 6 (see at [85] and [86] above). Moreover, given that proposed grounds 2 and 6 are related, the refusal to grant leave to appeal in respect of ground 2 necessarily affects ground 6. Leave to appeal should be refused.

The Constitutional issue

163. In brief, the Constitutional issue as identified in the s 78B notices concerns whether s 6 of the Police Act permits a police officer to remove children from the custody of a parent who has the benefit of a Family Court order by which those children were to live with that parent and, if so, which of s 6 and s 65M of the Family Law Act prevails.

164. Consistently with well-established authority, the Attorney-General submitted that this Constitutional issue should only be determined if it was necessary to do so (see Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32]-[33]). The Attorney-General submitted that the following steps needed to be satisfied before the Constitutional issue fell for determination:

1. The primary judge’s finding at PJ[119] that GM’s equal shared parental responsibility empowered him to decide where the children would live when their mother was under arrest, and, implicitly, that Senior Constable Burley’s actions were not inconsistent with the Family Court orders, must be set aside.

2. The primary judge’s finding at PJ[120] that Senior Constable Burley was not removing the children, but was making arrangements to facilitate the ongoing care of the children in circumstances where their mother was under arrest, must be set aside.

3. The premise in the s 78B notices that Senior Constable Burley was exercising a statutory power conferred by s 6(2) of the Police Act must be made good (noting the nature of the primary judge’s finding at PJ[120]).

4. The premise in the s 78B notices that s 65M of the Family Law Act applied, so as to give rise to a conflict with the power exercised by the police officer, must be made good.

165. In response, the applicant contended that the Constitutional issue fell to be resolved if the Court found in her favour that, contrary to the primary judge’s findings at PJ[120], s 6(2)(c) of the Police Act did not provide lawful authority for Senior Constable Burley’s actions. In her written submissions in response to those of the Attorney-General, the applicant explained why she claimed that there was an inconsistency between a law in the nature of that which underpinned the primary judge’s findings regarding s 6 of the Police Act and s 65M of the Family Law Act.

166. It is unnecessary to devote more time to describing the parties’ respective submissions on the Constitutional issue. That is because the Constitutional issue does not arise for the following reasons.

167. First, it is important to note that the terms of the s 78B notices focus only on that part of the primary judge’s statements at PJ[120] which relate to s 6 of the Police Act. This is reinforced by the contents of the applicant’s submissions in response to those of the Attorney-General. At [5] thereof, the applicant submitted that it “follows that if the Court upholds the Applicant’s challenge that s. 6 did not provide lawful authority for the arresting officer’s actions, the question of actual inconsistency need not be determined”.

168. Significantly, the applicant does not raise any Constitutional question as to the primary judge’s finding at PJ[120] that Senior Constable Burley’s actions in arranging for the children to go to their father were actions which were incidental to the exercise of the power of arrest under s 99 of the LEPR Act. The Constitutional issue is limited to the relationship between s 6 of the Police Act and s 65M of the Family Law Act.

169. Secondly, I have explained above why I consider that the primary judge did not err in finding that the statutory source of power for these actions by Senior Constable Burley was to be found in the incidental power conferred by s 99. That is a sufficient source of power to rebut the applicant’s claim that Senior Constable Burley’s actions were unauthorised or invalid. There is no need to rely on s 6 of the Police Act, hence the Constitutional issue falls away

170. Thirdly, assuming for the sake of argument that the primary judge did make a specific finding at PJ[120] that s 6(2) provided an independent source of statutory power for the relevant action, I have explained above why I consider any such finding would be in error (see at [140] to [147] above).

Non-Publication Order

171. An interim non-publication order was made by the Registrar which prohibited the publication of the names of certain people, which might lead to the identification of the two children. The trial below was conducted on a similar basis. It is appropriate to continue the non-publication order, which is necessary to prevent prejudice to the proper administration of justice (see s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)).

Costs

172. The applicant did not contest that costs should follow the event. It is appropriate to make such an order in respect of the first respondent. I consider, however, that the applicant should not also have to bear the costs of the Attorney-General who intervened in the appeal on the Constitutional issue only.

Conclusion

173. For these reasons, I propose that the applicant should have leave to appeal in respect of ground 1, but the appeal should be dismissed. Leave to appeal should be refused in respect of proposed grounds 2 to 6. There should be a continuing non-publication order. The applicant should pay the costs of the first respondent, as agreed or assessed. There should be no order as to costs regarding the second respondent’s intervention.

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Endnotes

Decision last updated: 26 May 2023