Auditore v State of New South Wales

[2017] NSWDC 150

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Auditore v State of New South Wales [2017] NSWDC 150
Hearing dates:	19 June 2017
Date of orders:	22 June 2017
Decision date:	22 June 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Save for the leave to replead granted in order (2) below, plaintiff’s notice of motion of 23 March 2017 dismissed. (2) Statement of claim struck out with leave to replead. (3) Plaintiff pay defendant’s costs of the hearing of this application, including the costs of the adjourned hearing before the List Judge on 15 June 2017. (4) Liberty to restore in relation to costs. (5) Proceedings listed before the Judicial Registrar on Friday 30 June 2017.
Catchwords:	TORT – negligence – application to completely replead statement of claim previously struck out by consent – action in negligence against the State of New South Wales for psychiatric injury alleged to result from a police officer having a sexual relationship with a witness – particulars provided refer to “grooming” and manipulative behaviour to a vulnerable person – whether police can owe a duty of care – whether duty of care can be owed to a witness – whether claim asserted direct and/or vicarious liability – whether claim is or should be one of negligence, an intentional tort or a claim of sexual harassment – coherence – statement of claim struck out – whether leave to replead should be granted given the delays and inadequacies of pleading – leave to replead granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Sex Discrimination Act 1984 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28
Cases Cited:	An Informer v A Chief Constable [2012] All ER (D) 31 (Mar) Brooks v Metropolitan Police Commissioner [2005] All ER (D) 287 (Apr) Cran v New South Wales (2004) 62 NSWLR 95 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Garzo v Liverpool-Campbelltown Christian School Limited [2011] NSWSC 292 Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 Knightley v Johns [1982] 1 WLR 349 Mahommed v Unicomb [2017] NSWCA 65 PBD and Another v Chief Constable of Greater Manchester Police [2013] EWHC 3559 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Rickard v New South Wales [2010] NSWSC 151 Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15 Rush and Others v Commissioner of Police (2006) 150 FCR 165 South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 State of New South Wales v Briggs [2016] NSWCA 344 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Thompson v Vincent (2005) 153 A Crim R 577 Chief Constable of Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977 Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited:	Independent Broad-based Anti-corruption Commission, Intelligence Report No 2, Predatory behaviour by Victoria Police officers against vulnerable persons, Victoria, December 2015 Wilson et al, “Romantic Relationships at Work: Does Privacy Trump the Dating Police?” (2003) 70 Defense Counsel Journal 78
Category:	Procedural and other rulings
Parties:	Plaintiff: Laura Auditore Defendant: State of New South Wales
Representation:	Counsel: Plaintiff: Mr S McMahon Defendant: Ms B K Nolan   Solicitors: Plaintiff: CBD Law Defendant: Henry Davis York
File Number(s):	2016/182384
Publication restriction:	None

Judgment

The application before the court

1. The plaintiff, by notice of motion filed on 23 March 2017, seeks leave to amend her claim in an action commenced on 15 June 2016 for damages for negligence resulting in alleged psychiatric injury.

2. The basis of the plaintiff’s claim is unusual. Her “injury” occurred during or after she entered into a sexual relationship with a police officer whilst he was conducting a criminal investigation in early 2013 into her former boyfriend. The plaintiff was not a victim or otherwise associated with those crimes; she was only a witness as to peripheral issues relating to the location of her former boyfriend’s alleged criminal conduct because she was able to identify the premises at which the former boyfriend resided. According to the statement of claim, the plaintiff also sought some advice from the police officer about obtaining an apprehended violence order against her former boyfriend, but this was unrelated to the criminal investigation being conducted by the police officer.

3. The plaintiff’s relationship with the police officer terminated about a year later, shortly after the plaintiff’s former boyfriend was convicted of a series of offences relating to secretly filming sexual encounters with other women.

The procedural history of the plaintiff’s claim

4. This claim has an unsatisfactory procedural history in that, a year after the commencement of the proceedings, the plaintiff has still not been able to set out her claim in any coherent pleading or to answer particulars in a satisfactory manner. After these deficiencies were pointed out by the defendant’s solicitors in correspondence but not remedied, the defendant foreshadowed a summary dismissal application. In proceedings before the Judicial Registrar on 24 August 2016, the defendant obtained directions to file notice of motion for dismissal but did not proceed with this step as the plaintiff filed an application for leave to amend on 28 October 2016.

5. This motion came before the List Judge on 11 November 2016. However, the application did not proceed and was stood over to 17 February 2017. On 17 February 2017 the statement of claim was acknowledged by the plaintiff’s legal advisers to be hopelessly drafted and, by consent, was struck out. The consent orders between the parties preserved the plaintiff’s entitlement to bring a further notice of motion, but on a self-executing basis.

6. The plaintiff’s legal representatives managed to file the notice of motion within time, but the draft amended pleading was the subject of further complaint. On the return date of this latest notice of motion (16 June 2017), the application to amend was still unable to proceed, because yet another draft amended pleading had been served by the plaintiff’s legal representatives on the defendant shortly before the motion was to be heard.

7. As the plaintiff’s application for leave to amend was by now urgent, it was stood over by the List Judge on 16 June 2017 to 19 June 2017, when it was listed before me for hearing. Both parties provided me with written outlines and a history of the difficulties the plaintiff was having in formulating her claim.

8. As set out below, I consider that the main reason for these pleading problems is that, despite several attempts at a claim in negligence requiring the plaintiff to plead a novel duty of care, the nature of the claim (as demonstrated by the particulars of fact pleaded (such as a reference to “inappropriate” behaviour and “grooming”)) is not a claim for negligence but either an intentional tort or a claim for sexual harassment. The pleader’s attempt to address these issues by a negligence claim raises issues of coherence (Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (“Tame”)) as well as the need to identify the precise acts and/or omissions in order to determine the nature of the wrong alleged, and thus the remedy sought.

The issues

9. The first issue is whether the proposed amendment (which is put on an “all or nothing” basis) should be permitted. The second issue is whether, if leave to amend in the present form of the pleadings is refused, the plaintiff’s claim should be dismissed. Although not articulated as a summary dismissal application in terms, the defendant’s position is in fact an application for the proceedings to be dismissed, conformably with rr 13.4(1)(b), 14.28 sub-rr (1)(a) and (1)(b) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

10. In view of the plaintiff’s delay in the conduct of these proceedings to date (which could result in limitation problems), it is essential that I hand down my reasons for striking out the pleading in its current form as soon as possible. I have therefore dealt with many of the issues in relatively brief compass. Given the novelty of the claim, a number of these issues are more appropriate for determination at appellate level.

The plaintiff’s claim: a police officer’s duty of care to a “vulnerable” person

11. The plaintiff claims that she has suffered injury in the nature of nervous shock, namely depression, anxiety and agoraphobia, as a result of the formation, continuation and/or ending of a sexual relationship with a police officer because she is a “vulnerable” person (in that, to his knowledge, she has a history of anxiety and depression), while he is in a position of power, being a sergeant of police who is carrying out an investigation in which she has a role as a witness.

12. Where a claim is brought for damages for a sexual relationship between a teacher and a pupil, or a parent and a child, or a priest and a parishioner, the issues are relatively straightforward. That is not the case where the relationship is a consensual one with another adult where that adult (or adult’s employer) does not owe some duty of care.

13. The first difficulty the plaintiff faces is that courts in the United Kingdom and Australia have specifically stated that police officers do not have a duty of care even towards a witness, let alone a member of the public, no matter how vulnerable (and it should be said that many persons the police encounter in their professional duties would have similar vulnerabilities).

14. The second difficulty is that traditional concepts of negligence, including vicarious liability, may be inappropriate to apply to intentional actions such as sexual relationships, particularly where there is an element of harassment or manipulation bringing the activity within the confines of a statutory cause of action such as the Sex Discrimination Act 1984 (Cth) (South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 at [64] – [70] per Kiefel J).

15. These difficulties are exacerbated in the present case because, as noted above, the statement of claim is confusingly pleaded in that, although some of the pleading describes a relationship of manipulation and/or sexual harassment (such as the use of the word “grooming” in paragraph 15 and the implicit suggestion of protection from danger in paragraphs 7(b), (h) and (i)), counsel for the plaintiff assured me that this was a consensual relationship of a normal kind.

The facts set out in the pleading

16. The first issue to note is the use of words connoting manipulative or harassing conduct by the police officer. For example, the sexual relationship is described in paragraph 14 as “inappropriate” and as including the following behaviour:

“7. Whilst [the police officer] was in contact with the Plaintiff during the Investigation he did:

(a) Engage in communication beyond the scope of the Investigation that involved sending text messages and making phone calls at various times of the day and/or night and communicating with the Plaintiff outside of regular hours;

(b) State to the Plaintiff that he would move to a home nearby the Plaintiff to protect her on more than 1 occasion in the period early 2013 through January 2015;

(c) Engage in communication with the Plaintiff whilst he was intoxicated;

(d) Send to the Plaintiff pictures of his penis via text message;

(e) Engage in inappropriate and sexually explicit conversation with the Plaintiff;

(f) Engage in furtive sexual activity with the Plaintiff;

(g) Form an inappropriate sexual relationship with the Plaintiff in that the Plaintiff was a witness in a criminal investigation of which he was conducting;

(h) Expressly represented to the Plaintiff that he, in his position as an investigative officer, would not allow any harm to come to her whilst conducting the investigation;

(i) Through his actions implied that he, in his position as an investigative officer, would not allow any harm to come to her whilst conducting the investigation.”

17. What does the plaintiff allege in her claim for negligence against the State of New South Wales as the steps which should have been taken to prevent the police officer forming a relationship with her and/or conducting himself in this manner? The statement of claim sets out the following precautions:

“19. The Plaintiff states that a reasonable person in the position of the Defendant, its servants and/or agents would have taken precautions against the risk of harm within the meaning of section 5B(1) and 5B(2) of the CLA and/or the common law.

Particulars of precautions including but not limited to:

(a) Adequately monitored the Investigation;

(b) Adequately monitored officers conducting the Investigation and in particular monitor the relationship with witnesses by engaging 2 or more officers with the witness;

(c) Further, or in the alternative to paragraph 19b, monitor the conduct of the investigation with [the police officer] and the Plaintiff from mid 2013 or anytime thereafter when those in its service became aware of the relationship between the Plaintiff and [the police officer];

(d) Removed [the police officer] from the Investigation in mid 2013 or anytime thereafter when those in its service became aware of the relationship between the Plaintiff and [the police officer];

(e) Rotated [the police officer] and other officers in the Investigation.”

18. These particulars clearly raise the conflict between the immunity of police in relation to the conduct of criminal investigations where there are allegations of negligence, as noted in Tame at [50] – [51], [126], [231] and [298], with conventional concepts in the law of negligence as to duty of care. How can police officers carry out investigations efficiently if they are obliged to do so under the kind of constant supervision proposed by paragraph 19 of the statement of claim? This is one of the bases for the application of an “immunity” for police (see Tame) from negligence claims generally.

19. I also note the defendant’s objections to the form of the pleading, which include:

1. The absence of material facts upon which to allege that two senior officers were aware of the allegedly inappropriate relationship;

2. How those police officers owed a duty of care to protect her from the consequences of a personal interaction with the police officer;

3. What the Commissioner of Police should have done in circumstances where a police officer has a sexual relationship with a witness; and

4. A delineation between the direct liability and vicarious liability claims.

20. I shall first consider the question of whether there is in fact a duty of care owed by the defendant, either directly or by vicarious liability.

Claims asserting a novel duty of care

21. The relevant principles to apply when considering novel duties of care in negligence are set out in Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 at [39]-[60]. (I also note that the test to apply for summary dismissal is set out in Perera v Genworth Financial Mortgage Insurance Pty Ltd at [21]-[38]).

22. The plaintiff identifies the duty of care (at paragraph 1(d) of the First Amended Statement of Claim) as being that the defendant:

“(d) did owe a duty of care to the Plaintiff to prevent foreseeable risk of harm when conducting an investigation of Marc Osborne in the period early 2013 through January 2015 whilst the Plaintiff was a witness by virtue of the facts, matters and circumstances pleaded below.”

23. Two particular factors arising from those “matters and circumstances” appear to me to be relevant:

1. The asserted negligence arose in the course of conduct of criminal proceedings in which the plaintiff was a witness, which requires an investigation of what duty of care is owed, by whom and to whom; and

2. The conduct in question was not a mere failure to investigate or incompetence, unlike other decisions where courts have held there was no duty of care owed by police officers, but appears to be a misuse of the occasion of investigation for an improper or collateral purpose (see Perera v Genworth Financial Mortgage Insurance Pty Ltd at [50]), namely the obtaining of some form of sexual gratification by the police officer in question.

Is a duty of care owed by a police officer and, if so, to whom?

24. As to duty of care generally, any duty must be prospective and not based on hindsight, for the reasons explained in State of New South Wales v Briggs [2016] NSWCA 344 at [140]-[141]:

“[140] What is more, the concluding sentence in each of those paragraphs reproduced above amounts to reasoning based on hindsight. In order for liability to be made out, what was required was the identification of some different, specified system of work which, if it had been implemented and maintained, across the NSW Police Force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury. As Hayne J said in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [124] and [126], in terms which have often been followed:

The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.

When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

[141] In Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 at [20], Spigelman CJ said:

The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.”

25. The duty of care needs to be defined with precision, including the persons to whom that duty is owed.

26. The duty a member of the Police Force owes to a member of the public is generally referred to in the context of Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049, where the proceedings were brought by the parent of Jacqueline Hill, who was attacked and murdered by the offender later known as the “Yorkshire Ripper”. The gravamen of the claim was a failure to apprehend the murderer so as to prevent the murder of Jacqueline Hill, a potential victim of the murderer. The proceedings were struck out as showing no cause of action on the basis that, while a police officer may be liable in damages for assault, he is not liable for a failure to perform a duty he is bound to perform by common law or statute or specific negligent acts (see for example, Knightley v Johns [1982] 1 WLR 349), as there is no duty to the general public to enforce the criminal law.

27. Hill v Chief Constable of West Yorkshire was referred to with approval in Tame at [231]. However, as McHugh J noted at [126], it was “unnecessary to decide” the issue, as police officers recording material in the administration of criminal justice owed no duty to those affected by the material recorded. Similar views were expressed by Gummow and Kirby JJ at [231] in relation to any asserted duty of care to a person whose conduct is under investigation.

25. Hayne J stated at [298]:

“[298] Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties.” (Citations omitted)

29. Similar views have been expressed by Santow JA in Cran v New South Wales (2004) 62 NSWLR 95 at [34] – [64] and by Mason P (with whom Handley JA and Pearlman AJA agreed) in Thompson v Vincent (2005) 153 A Crim R 577 at [151] – [155]. In Rush and Others v Commissioner of Police (2006) 150 FCR 165 (“the Bali Nine case”) at [91] – [100], Finn J noted that to impose common law duties of care on police officers was inconsistent with the discharge of their public responsibilities and impermissible for that reason. While there were circumstances (at [97]) where a duty of care may be assumed, those duties were restricted to very special cases; the example his Honour gave (of a person in witness protection) is actually inconsistent with the findings of the court in PBD and Another v Chief Constable of Greater Manchester Police [2013] EWHC 3559, which is perhaps an indication of the degree of uncertainty as to the very narrow circumstances in which such a duty may be owed.

30. A case with similar facts to the present is Rickard v New South Wales [2010] NSWSC 151. The plaintiff sought assistance at a police station as a victim of domestic violence and, in a state of distress, sold her car for only $100 to the police officer she spoke to. Her claim for negligence (in the form of economic loss) was dismissed by reliance upon the immunity referred to in Hill and as discussed in Tame (at [50] – [80]; see especially [76]). Hulme J paid particular regard to the concept of vulnerability (at [84] – [91]) but still came to the view that there was no duty of care. This seems a harsh result, but is consistent with cases where it has been held that no duty of care to members of the public, even vulnerable ones such as victims of domestic violence such as Ms Rickard (or persons with pre-existing psychiatric problems such as anxiety or depression), exists.

31. However, the issue of immunity for police in relation to negligence should not be regarded as concluded. In Cran v New South Wales, a prisoner who developed post-traumatic stress disorder as a result of unnecessary and undue prolongation of his imprisonment before trial was entitled to claim. In Thompson v Vincent, Mason P noted at [154]-[155]:

“[154] This is not to say that police may never act in such a way as to assume a duty of care in a particular task (cf Knightly v Johns [1982] 1 WLR 349; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Zalewski v Turcarolo [1995] 2 VR 562; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 576 [81]). But the present case bears no relationship to those exceptional situations. Rather, it falls well within the area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public.

[155] State of New South Wales v Napier [2002] NSWCA 402 was also cited in support of the police having a duty of care to prevent injury stemming from criminal activity because, in the circumstances, they had “control” of the situation. Napier involved a prison situation and it is clearly distinguishable, particularly in relation to the events that occurred when the police were away from the site performing other duties.” [Emphasis added.]

32. I also note the views of Finn J in the Bali Nine case at [99]-[101]:

“[99] Australian case law, while generally conforming in its results with particularly comparable English decisions, has not unreservedly committed itself to the public policy immunity prevailing in England. The Court of Appeal of New South Wales on a number of occasions — and most recently in Cran v State of New South Wales — has adopted an approach to cases involving investigative conduct that reflects the immunity principle found in English decisions and particularly Hill’s case. In Cran v State of New South Wales it was noted by Santow JA that in Tame’s case, “there are strong dicta suggesting that the English authorities would be followed in Australia” (at [35]) and that “on present authority [in New South Wales] the greater public interest accorded unimpeded investigation by the police … preclude[d] any duty of care to the appellant” (at [63]) in that case where a prisoner claimed damages for post-traumatic stress disorder resulting from unnecessarily prolonged imprisonment because of delay in a police investigation.

[100] In contrast, the 1995 decision of the Appeal Division of the Supreme Court of Victoria and the recent Tasmanian decision of Batchelor v State of Tasmania are more questioning of whether the immunity principle (at least in the scope given it) is part of Australian law.

[101] It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities “in the investigation and suppression of crime”: Costello’s case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan. I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating “reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire … has been thought to lay down” on the immunity of police: cf Brooks v Commissioner of Police, at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see eg Costello Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe, 72 DLR 4th at 584–586.”

33. It is thus unlikely, even in very confined or clear factual circumstances, that a duty of care could exist. At first blush, it may appear that owing a duty to a witness could be such an exception, but in fact the few decisions on this issue are to the contrary.

Is a duty owed to a witness?

34. There are no decisions on this issue in Australia that I am aware of, but English courts have held that there is no duty to a witness by police officers involved in the case in which they are a witness. In Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, Hallett VP stated this as a general principle:

“26. Thus, there can be no doubt: the core principle of Hill remains. At paragraph 30 Lord Steyn observed: “It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence.”

35. In PBD and Another v Chief Constable of Greater Manchester Police, Silber J rejected a claim for psychiatric injury brought by a person in witness protection who had been inadvertently put in the presence of a former associate. His Honour held that (at [36]-[37]) there was a more basic reason why no duty of care would be owed to the plaintiff, in that the police did not owe a duty of care to witnesses and victims. Silber J concluded that it was not possible to see why someone in the plaintiff’s position (who was a suspect about to be charged with a money laundering offence), ought to be owed a duty when a witness and a victim did not have such a duty owed to him: see Brooks v Metropolitan Police Commissioner [2005] All ER (D) 287 (Apr); Chief Constable of Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977; An Informer v A Chief Constable [2012] All ER (D) 31 (Mar).

36. These cases are a formidable barrier to the claiming of a duty of care to a witness even though, as the Court of Appeal noted in Perera v Genworth Financial Mortgage Insurance Pty Ltd, the categories of negligence are not closed.

37. The next difficulty the plaintiff faces is the issue of coherence, in that a claim which involves intentional activities (in that the actions are “inappropriate”, involve promises of protection and “grooming”) is pleaded as negligence rather than as a form of sexual manipulation or harassment.

What kind of conduct is the plaintiff really complaining about?

38. The difficulties the plaintiff is having in terms of articulating the duty of care and the hopelessness of the particulars of breach of duty are indicative of the inadequacies of the tort of negligence to address the harm of which the plaintiff complains.

39. Even if the plaintiff could articulate a duty of care, an action for negligence may not be available where the facts properly give rise to another cause of action, and in particular should not be brought where that action, properly defended, could be defeated. In Tame the information which caused the plaintiff’s psychiatric injury was recorded “honestly but carelessly” (at [126] per McHugh J), which meant that any defamation claim (which is what the plaintiff should have sued on) would have failed, as the defence of qualified privilege at common law would have applied. McHugh J stated that, just because the plaintiff would lose any defamation action she brought, there was “no reason why the law of negligence should alter that balance.” As noted above, in Tame, McHugh J considered that a blanket rule of no duty of care, in relation to the conduct of criminal investigation, was more appropriate for the administration of criminal justice than a case by case examination, and it is likely that the same result would apply to a complaint brought about the sexual conduct of a police officer with a witness.

40. The real question is the nature of that sexual relationship. Many persons (including police officers) start relationships with someone they met in the course of their work, sometimes in circumstances which may be of concern to not only the other person but also to their employer: Wilson et al, “Romantic Relationships at Work: Does Privacy Trump the Dating Police?” (2003) 70 Defense Counsel Journal 78. When a consensual relationship between two adults who meet in the course of their work occurs, whether or not one of them has a history of anxiety or depression, courts would be reluctant to find a duty of care arose on the part of one of those persons (or their employers) unless there was some special feature to the relationship. In the case of police officers whose duties often involve activities of a dangerous nature, courts would be particularly reluctant to find such a duty arose, because it would place too heavy a burden on police officers’ private lives.

41. However, where a police officer uses grooming or inappropriate behaviour, such as hinting that a witness (or victim, or other vulnerable person) might be in danger without his/her support, or otherwise making that witness dependent upon him/her, in circumstances where the purpose or result is the encouraging of sexual favours, that conduct (which is deliberate, rather than negligent) may be actionable because it amounts to a form of sexual harassment or intentional tort. While there are no precedents in case law to draw upon for examples of such conduct, I note similar factual cases described in the Independent Broad-based Anti-corruption Commission, Intelligence Report No 2, Predatory behaviour by Victoria Police officers against vulnerable persons, Victoria, December 2015.

42. Conduct of that kind is not negligent conduct by a police officer, but deliberate misuse of the powers they are given for the purposes of investigation of crime. If this occurs, it may be conduct of the kind amounting to sexual harassment which is the subject of Commonwealth legislation. If so, for the reasons explained by Kiefel J in South Pacific Resort Hotels Pty Ltd v Trainor, any vicarious liability issue of the defendant as the employer of the police officer would similarly be determined by the relevant legislation, and not on common law principles. It may also be conduct amounting to an intentional tort, such as intentional infliction of emotional distress or deceit.

43. It will not, however, be a claim in negligence, and even if it were, certainly not in the present form of the statement of claim. First, there is the failure to identify the duty of care (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48) and its scope, either to a class of persons or to protect the plaintiff from the consequences of personal interaction with the police. The pleader’s use of what counsel for the defendant called “buzzwords”, such as “vulnerable person” and “special relationship” (paragraphs 9 and 12 – 14 of the statement of claim) does not overcome these obligations to plead with precision. Next, there is the failure to set out how the defendant is directly liable (Garzo v Liverpool-Campbelltown Christian School Limited [2011] NSWSC 292 at [54] – [61]) and/or vicariously liable. These problems are exacerbated by the language of the claim, such as allegations of furtive, manipulative, grooming and harassing behaviour rather than negligently causing harm because of a foreseeable risk. The combined impact of these problems make any attempt to rescue some portion of the pleadings, or to identify some particular cause of action, an exercise in futility, and it is one upon which I do not intend to embark, particularly in light of the generalised “all or nothing” approach of both parties.

44. This brings me to the question of the appropriate orders to make if the statement of claim is struck out. The parties’ “all or nothing” approach to the pleading means that the statement of claim either goes ahead in its present form or is struck out in its entirety, as occurred (although by consent) when proposed amendments to the statement of claim were last before the court for determination, on 17 February 2017. Counsel for the defendant submitted that, if the claim could not be amended, the time had come for the court to strike out the whole of the proceedings pursuant to rr 13.4 and 14.28 UCPR, conformably with the principles of ss 56 – 62 Civil Procedure Act 2005 (NSW), but counsel for the plaintiff submitted that one last chance should be given.

Should the plaintiff’s claim be dismissed?

45. These events occurred in 2013 and the parties informed me that limitation issues may arise if the case continues to be pleaded in negligence.

46. No matter how hopeless the pleading may appear, summary dismissal of the entire action may need to be exercised with caution where there is a limitation period issue, for the reasons set out by Ward JA in Mahommed v Unicomb [2017] NSWCA 65.

47. That is particularly the case where this is the first contested hearing of the application. Where a claim is difficult to encapsulate, more than one application may be necessary for a party to formulate its case with precision. However, there are limits to this entitlement, which the plaintiff is fast approaching: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 (sixth amendment to statement of claim refused). I should exercise caution on this occasion, having regard to the overriding principles of s 56 Civil Procedure Act 2005 (NSW), as the subject matter of the claim hints at the possibility that there is a claim of substance underneath the muddled pleadings, but the next amended pleading may well be the plaintiff’s last chance.

48. Counsel for the defendant submitted that the failure of the plaintiff to provide a statement of claim in proper form should be viewed with more than usual strictness because the parties had agreed upon a self-executing order regime in the orders made by consent on 17 February 2017, after the plaintiff’s previous failure to plead her case. However, the self-executing nature of that order only related to the filing of the notice of motion, and did not restrict further amendments to the statement of claim.

49. Costs should follow the event. I will grant liberty to apply in the event of any application to vary the usual costs order. I have listed the proceedings for directions before the Judicial Registrar on Friday 30 June 2017.

Orders

1. Save for the leave to replead granted in order (2) below, plaintiff’s notice of motion of 23 March 2017 dismissed.

2. Statement of claim struck out with leave to replead.

3. Plaintiff pay defendant’s costs of the hearing of this application, including the costs of the adjourned hearing before the List Judge on 15 June 2017.

4. Liberty to restore in relation to costs.

5. Proceedings listed for directions before the Judicial Registrar on Friday 30 June 2017.

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Amendments

22 June 2017 - [39] - Typographical error - sixth word amended to "articulate"

Decision last updated: 22 June 2017