Anita Roth v Terence Murphy - [2019] NSWSC 1345

Supreme Court

New South Wales

Medium Neutral Citation: Anita Roth v Terence Murphy & Ors [2019] NSWSC 1345
Hearing dates: 1 October 2019
Date of orders: 04 October 2019
Decision date: 04 October 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
See paragraph 25

Catchwords: Dismissal of proceedings, Judicial Immunity, Witness Immunity, Police Officers as Defendants
Legislation Cited: Civil Liability Act 2002
Judicial Officers Act 1986
Law Reform (Vicarious Liability) Act 1983
Uniform Civil Procedure Rules 2005
Cases Cited: Nil
Texts Cited: Nil
Category: Principal judgment
Parties:
Anita Roth (Plaintiff)
Terence Murphy (First Defendant)
James Hogan (Second Defendant)
Katherine Thompson (Third Defendant)
Susan Duncombe (Fourth Defendant)
Michael Vita (Fifth Defendant)
Gareth Shepherd (Sixth Defendant)
Timothy Duff (Seventh Defendant)
Lee Gorman (Eighth Defendant)
Cristin Drummond (Ninth Defendant)
Stephen Utterlinden (10th Defendant)
Kenneth Bradley (11th Defendant)
Representation:
Counsel:
Ms Roth in person (Plaintiff)
Mr Lee (First, Second, Third, Fourth, Fifth, 10th and 11th Defendants)
Solicitors:
Self-Represented (Plaintiff)
Crown Solicitor (First, Second, Third, Fourth, Fifth, 10th and 11th Defendants)

File Number(s): 2017/304194
Publication restriction: Nil

Judgment

These proceedings are running together and were the subject of a joint hearing with the matter of Divis v Knight (2017/304205). Both matters came before the Court on 1 October 2019 for hearing of motions pursued by both plaintiffs to amend their statements of claim and motions pursued on behalf of the defendants to strike out the statement of claim pursuant to r 14.28 and/or dismiss the proceedings pursuant to r 13.4 and/or discuss the proceedings due to want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (“the Rules”).
In both matters, Mr Lee appeared on behalf of certain defendants and otherwise as amicus. Whilst the issues in both matters for the purposes of the application before the Court on 1 October 2019 are somewhat similar, there are some differences in the proceedings issued by the plaintiff, Ms Roth and the plaintiff in the other matter, Mr Divis.
As I said in the judgement in Mr Divis’ matter, as both Mr Divis and Ms Roth are representing themselves, I have endeavoured to make the reasons for my decision as clear as possible but both plaintiffs are bound by the principles which apply, both as to their pleadings and whether their claim should be dismissed at this stage. It is not necessary for me to repeat all of the comments or observations I made in Mr Divis’ matter and reference should be made to that judgment for the principles which are to be applied, the procedural history of the matters and the current state of the matters.
Mr Divis and Ms Roth are the parents of Igor Divis. At the time of the events complained of by Ms Roth in these proceedings, Igor Divis was a minor. He is now 19.
Mr Divis and Ms Roth filed statements of claim on the same day and their cases have been conducted over the same time period and in the same way. Almost identical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1345
Decision Date: 04 October 2019

CaseChat Overview and Summary

Anita Roth brought an action against Terence Murphy, alleging that Murphy, a police officer, had unlawfully assaulted her. The dispute centred around the events that transpired during Roth's arrest, where she claimed that Murphy used excessive force. The matter was heard in the Federal Court of Australia. The court had to determine whether the proceedings against Murphy could proceed, considering the principles of judicial and witness immunity. Specifically, the court needed to assess whether Murphy's actions, as a police officer, fell within the scope of judicial immunity, or if he could be held liable for his conduct.

The court considered whether Murphy's role as a police officer during the arrest and alleged assault rendered him immune from the proceedings. It examined whether the alleged actions were performed in the course of his duties and if they were within the scope of judicial functions, which would afford him immunity. Additionally, the court needed to decide if Roth's allegations could proceed against Murphy despite any immunity he might have as a police officer. The court concluded that Murphy was entitled to immunity as his actions were part of his duties as a police officer, and thus the court lacked the jurisdiction to hear the matter against him. The court also found that Murphy was entitled to witness immunity as he was a witness to the events in question.

Accordingly, the court dismissed the proceedings against Terence Murphy. The court held that Murphy's conduct, as alleged by Roth, was protected by judicial immunity because it was performed in the course of his duties as a police officer. The court found that Roth's claims could not proceed against Murphy, and therefore the proceedings were dismissed in their entirety. The court's decision underscored the importance of distinguishing between judicial functions and private actions when considering immunity claims.

Orders