Dorante-Day v State of Queensland
[2025] QSC 248
•30 September 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Dorante-Day v State of Queensland [2025] QSC 248
PARTIES:
SIMON CHARLES DORANTE-DAY
(plaintiff)
v
STATE OF QUEENSLAND(defendant)
FILE NO/S:
BS 15085 of 2024
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
30 September 2025
DELIVERED AT:
Toowoomba
HEARING DATE:
26 August 2025
JUDGE:
Copley J
ORDER:
Pursuant to r 293(2) of the UCPR judgment be entered for the defendant.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT; STAY OR DISMISSAL OF PROCEEDINGS – where the plaintiff made criminal complaints to the Queensland Police Service which were not further investigated – where the plaintiff seeks relief in the form of having police investigate his complaints and commence prosecutions, as well as in general and punitive damages – where the defendant seeks summary judgment or alternatively that the plaintiff’s statement of claim be struck out – whether the plaintiff has any reasonable cause of action or real prospect of success
POLICE – RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES – DISCRETION AND DUTY TO INVESTIGATE AND ENFORCE – where the plaintiff’s adoption records and other personal documents were published on internet sites – where the plaintiff subsequently complained to the Queensland Police Service, contending that the publishing of the documents constituted criminal offences – where police elected not to conduct further investigations into the plaintiff’s complaints – whether the Police Service Administration Act 1990 or the Police Powers and Responsibilities Act 2000 conferred a cause of action for a breach of statutory duty – whether the Queensland Police Service owed the plaintiff a duty of care in the investigation of the plaintiff’s complaints – whether a cause of action for negligence is available
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – QUEENSLAND – where the plaintiff alleges a decision by the Queensland Police Service not to conduct further investigations into his complaints failed to give proper consideration to his human rights – where s 59(1) of the Human Rights Act 2019 requires an independent ground of unlawfulness to be established – whether a claim for relief can be made out
Acts Interpretation Act 1954 (Qld), s 14
Adoption Act 2009 (Qld), s 315
Criminal Code (Cth), s 474.17
Criminal Code (Qld), s 359ADirector of Public Prosecutions Act 1984 (Qld), s 11
Human Rights Act 2019 (Qld), s 15, s 21, s 25, s 26, s 58, s 59
Police Powers and Responsibilities Act 2000 (Qld), s 5, s 7, s 804
Police Service Administration Act 1990 (Qld), s 1.3, s 2.1, s 2.2, s 2.3, s 2.4, ss 4.1-9.8Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293
Abood v State of Queensland [2024] QSC 225
Bank of Queensland Ltd v Y & L Promising Pty Ltd (2022) 12 QR 326
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Cran v State of New South Wales (2004) 62 NSWLR 95
Gardiner v State of Victoria [1999] 2 VR 461
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Groom v State of South Australia [2017] SASCFC 35
Innes v Electoral Commission of Queensland & Anor (No 2) (2020) 5 QR 623
Lee v Abedian [2017] 1 Qd R 549
Polar Aviation v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293
Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218
Sullivan v Moody (2001) 207 CLR 562
Webster v Lampard (1993) 177 CLR 598Wilson v State of New South Wales (2001) 53 NSWLR 407
COUNSEL:
The plaintiff appeared on his own behalf
D M Favell for the defendant
SOLICITORS:
The plaintiff appeared on his own behalf
Crown Law for the defendant
The plaintiff commenced a proceeding by claim and statement of claim on 6 November 2024. The relief sought was the “restoration of natural justice”, damages for the “human rights denied” to the plaintiff for three years, and “punitive” damages.
The defendant has applied for orders that:
(i)Pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) summary judgment be given against the plaintiff.
(ii)Pursuant to r 171 of the UCPR, and alternatively to summary judgment, the statement of claim be struck out on the ground that it does not disclose a reasonable cause of action or otherwise has a tendency to prejudice or delay the fair trial of the proceeding.
(iii)The claim be struck out pursuant to the Court’s inherent jurisdiction.
(iv)The plaintiff pay the defendant’s costs of the application and the proceeding on the standard basis.
Statement of claim
The statement of claim set out the following circumstances in a narrative form.
The plaintiff, who was born in Britain, was the subject of an adoption in England. He migrated to Australia, married and had a family. From early 2021 the plaintiff, his wife and their business were made the subject of posts on internet sites such as Reddit and Facebook. Among other matters, the plaintiff’s adoption certificate, an extract of his birth records and other personal documents and images about him were published on those sites. The plaintiff’s complaints to persons or organisations responsible for the sites were not addressed to his satisfaction.
On 24 September 2021 the plaintiff attended a Queensland Police Service station and made or attempted to make a complaint to the Queensland Police Service about offences that the plaintiff alleged the persons who posted this material had committed. The police officer he spoke with at the station would not accept his complaint.
Further correspondence with the Queensland Police Service resulted in the plaintiff attending the same station on 18 November 2021. On this occasion the plaintiff was interviewed. He “submitted evidence, and was given a crime number”. The plaintiff provided the police with “evidence” of the release of identifying adoption information and the publication of that information, stalking and that a carriage service had been used to menace, harass and threaten him, his wife and his family.
On 3 December 2021 the plaintiff was informed by the Queensland Police Service that the police did not intend to conduct any further investigation into his complaint, the police regarding it as a civil matter, not a criminal matter.
Over the next 12 months the plaintiff and his family were subject to continuing harassment, stalking and menacing behaviour by persons who made posts on sites on the internet via Facebook pages.
On 16 November 2022 the plaintiff went to another Queensland Police Service station and made complaints against four people who were operating a Facebook group, including a person he identified as living in Tasmania. The complaint was not accepted on the grounds that it involved a civil issue. A police officer laughed at and mocked the plaintiff and suggested sarcastically that the plaintiff approach another branch of the Queensland Police Service concerned with cybercrimes.
In the period of 12 months following this visit to the police the information regarding the plaintiff’s adoption and the publication of his birth details remained available for access on a Facebook site.
On 19 October 2024 the plaintiff received “a harassing QPS visit” related to his movements. The plaintiff “refused to state his movements as the QPS had no legal right to request them”.
Under the heading “BREACH OF STATUTORY DUTY” the statement of claim asserted that the Queensland Police Service had a “statutory obligation, let alone an arguable duty of care,” pursuant to the Police Service Administration Act 1990 (Qld) and the Police Powers and Responsibilities Act 2000 (Qld) for: the preservation of peace and good order in all areas of the State and outside the State where the laws of the State may be lawfully applied; protection of all members of the community from unlawful disruption of peace and good order that resulted or was likely to result from the actions of criminal offenders and the prevention of crime; the detection of offenders; the bringing of offenders to justice and the upholding of the law generally.
The statement of claim pleaded:
“65.On three (3) separate occasions between 2021 and 2024, despite providing comprehensive evidence to the contrary, the plaintiff was denied natural justice without a valid or lawful excuse by the QPS.
66.During the same time period, despite numerous written requests from the plaintiff, and directions from Federal Government, the Queensland Government and QPS, have failed to provide any legitimate explanation or been accountable for, the denial of the plaintiff’s natural justice without a valid or lawful excuse.
67.During the same period, the QPS have acted as an illegitimate ‘gatekeeper’ to the plaintiff receiving natural justice both in his home country of citizenship, the UK, and in the Netherlands, as well as inter-State, by their inaction(s) and action(s), without a valid or lawful excuse.
68.In the process of this the plaintiff has been heckled, mocked, teased, laughed at, ignored, defamed, given the runaround, lied to, and humiliated by various QPS and QFTAC[1] staff despite having a legal right to seek natural justice for the criminal issues he, and his family, were enduring outlined in the Factual Background above.
69.As a result, the plaintiff argues that not only are the action(s) and decision(s) of the QPS unlawful, and a failure of their statutory obligation, but they are also unlawful by virtue of section 58 of the Human Rights Act 2019.
70.In the first instance the QPS acted, and made a decision, in a way that is not compatible with the human rights of the plaintiff i.e. section 15 Recognition and equality before the Law by removal of natural justice with no legal or lawful excuse.
71.In the second instance the QPS in making that decision, failed to give proper consideration to a human right of the plaintiff relevant to the decision i.e. section 25 protection of privacy and reputation from being unlawfully and arbitrarily interfered with; and section 26 protection of families and children without discrimination.
72.In the third instance the QPS have paid no regard to the rights of the plaintiff as both a resident of Queensland and a British Citizen, particularly by providing an impediment to the HPS,[2] not recognising the Family Law issues occurring, nor the logistical obstacles facing the plaintiff.
73.Finally, the QPS have paid no regard to the statutory breaches of adoption and privacy legislation that have occurred and failed to recognise the plaintiff’s right under section 21 to freedom of expression without interference, especially unlawful, regarding his paternity and adoption.
74.Indeed, it could be claimed that given their knowledge and awareness of the plaintiff’s situation that the QPS were not only negligent but that they recklessly endangered the well-being of the plaintiff and his family by not upholding their duty of care, and the Law. Had people been apprehended earlier this would have provided a significant deterrent to others attempting the same or, … much worse activities.”
[1]Queensland Fixated Threat Assessment Centre.
[2]Hampshire Police Service.
Under the heading “RELIEF CLAIMED” the statement of claim pleaded:
“77.The plaintiff argues that the opportunity to restore natural justice still exists i.e. the house hasn’t burnt down, a life hasn’t been lost, or loss of the use of a limb has not been inflicted. In fact, the criminal behaviour, menacing, harassing, threatening, adoption and privacy breaches, … are still current and have escalated …
78.Therefore, by way of relief the plaintiff primarily seeks the restoration of natural justice denied him by the QPS i.e. his complaints … be upheld, investigated, and prosecuted by QPS according to the law: restoration of Natural Justice.
79.Moreover, the plaintiff would appreciate some form of lawful justification from the QPS for their action(s) and the ‘watch list’ status.
80.Secondarily, the plaintiff seeks General Compensatory Damages (non-financial loss) for the human rights denied him for three years.
…
81.Thirdly, the plaintiff asks the Court to award punitive damages against the defendant as a deterrent to the State of Queensland for the unlawful process of dealing with this issue that has occurred over the past three years.”
The plaintiff seeks three forms of relief. First, the restoration of natural justice by the police investigating his complaints and commencing prosecutions as a result of those investigations. Second, general damages for the denial of human rights recognised in the Human Rights Act 2019 (Qld). Third, punitive damages related to an unlawful process of dealing with his complaints. Two possible causes of action might be discernible as providing bases for the relief sought. One is breach of statutory duty, or “obligation” as it is termed in paragraph 60. Another is a possibility of a cause of action in negligence because paragraph 74 says “it could be claimed” that the QPS was negligent.
For the reasons set out below I am persuaded that the plaintiff has no real prospect of succeeding on any part of his claim and that there is no need for a trial of the claim. It is appropriate to order judgment for the defendant.
Summary judgment / striking out
Rule 293 provides:
“293 Summary judgment for defendant
(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
(2) If the court is satisfied-
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
(b) there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
A court must approach an application for summary judgment with exceptional caution.[3] In Bank of Queensland Ltd v Y & L Promising Pty Ltd Cooper J said:[4]
“The relevant inquiry is whether there exists a real, as opposed to fanciful, prospects of success.
Proceedings will be determined only in the clearest of cases, where there is a high degree of certainty about the outcome. Further, the jurisdiction to dismiss a plaintiff’s action should only be exercised where the plaintiff cannot improve its position by a proper amendment of its pleadings.” (Footnotes omitted)
[3]General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at [129], Webster v Lampard (1993) 177 CLR 598 at 602.
[4](2022) 12 QR 326 at [106]-[107].
Rule 171 relevantly provides:
“171 Striking out pleadings
(1) This rule applies if a pleading or part of a pleading –
(a) discloses no reasonable cause of action or defence; or
…
(2) The Court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
(3) On the hearing of an application under subrule (2), the Court is not limited to receiving evidence about the pleading.”
The power to strike out a pleading is only to be used in a clear case,[5] and great care must be taken to ensure that a plaintiff is not wrongly deprived of an opportunity to present a case at trial. However, if the pleading does not disclose a reasonable cause of action the Court must not shrink from dismissing it.[6]
[5]General Steel at 129-130, Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218 at [12].
[6]Lee v Abedian [2017] 1 Qd R 549 at [39].
For the purpose of considering summary judgment the defendant submits that the statement of claim can be regarded as raising causes of action for breach of statutory duty and for negligence. The defendant submits that neither cause of action is capable of being made out. The defendant also submits that any breach of the Human Rights Act does not give rise to a reasonable cause of action absent a cause of action which has arisen independently of that statute.
Breach of statutory duty
The plaintiff submits that the statement of claim discloses two causes of action: an action for breach of statutory duty and an action for negligence. In this circumstance he submits that the application for summary judgment should be refused. As to an action for breach of statutory duty, the plaintiff argues that a statutory duty has been imposed on the Queensland Police Service. He submits that the legislative intention was to confer a cause of action for breach of the statutory duty and, that being a victim of offences,[7] he was within a class of persons for whose benefit the duty was imposed. In oral submissions the plaintiff conceded that the statement of claim was deficient in some respects but submitted that these deficiencies could be rectified should he be permitted to replead aspects of the statement of claim.
[7]Criminal Code (Qld) s 359A (stalking), Adoption Act 2009 (Qld) s 315 (publishing identifying material) and Criminal Code (Cth) s 474.17 (using a telecommunications network with intention to commit a serious offence).
In Byrne v Australian Airlines Ltd Brennan CJ, Dawson and Toohey JJ said:[8]
“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute …” (Footnote omitted).
[8](1995) 185 CLR 410 at 424.
After citing the passage above in Gardiner v State of Victoria, Phillips JA said:[9]
“Thus it is often asked whether, upon a proper consideration of the scope and purpose of the statute as a whole, it can be said that the Act which contains the particular obligation at issue was passed primarily for the general good; for if the statute as a whole can fairly be characterised as passed primarily for the general good rather than for the benefit or protection of some only within the wider community, that is nowadays regarded as pointing strongly against a Parliamentary intention that an individual should be able to sue for non-compliance with some particular provision: Balkin & Davis, Law of Torts 2nd ed., (1996), p.506. On that footing, legislation providing for the general regulation of prisons has been held to give no private right of action for breach, though such legislation doubtless operated, at least in part, to protect the inmates: R v. Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58.”
[9][1999] 2 VR 461 at 469.
It cannot be discerned from the relevant provisions of either the Police Service Administration Act or the Police Powers and Responsibilities Act that either statute conferred a cause of action on the plaintiff to recover damages for any breach of the provisions of those statutes.
Section 2.3 of the Police Service Administration Act provides for the functions of the Queensland Police Service. Those functions are:
“(a) the preservation of peace and good order–
(i) in all areas of the State; and
(ii) in all areas outside the State where the laws of the State may lawfully be applied, when occasion demands;
(b)the protection of all communities in the State and all members thereof-
(i) from unlawful disruption of peace and good order that results, or is likely to result from-
(A) actions of criminal offenders;
(B) actions or omissions of other persons;
(ii) from commission of offences against the law generally;
(c) the prevention of crime;
(d) the detection of offenders and bringing of offenders to justice;
(e) the upholding of the law generally;
(f)the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of-
(i) the provisions of the Criminal Code;
(ii)the provisions of all other Acts or laws for the time being committed to the responsibility of the service;
(iii) the powers, duties and discretions prescribed for officers by any Act;
(g) the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are-
(i) required of officers under any Act or law or the reasonable expectations of the community; or
(ii) reasonably sought of officers by members of the community;
(h) the provision of services for the security of state buildings.”
The functions of the Police Service include the protection of all communities and all members of those communities from the commission of offences against the law (s 2.3(b)). This provision demonstrates that the Police Service functions are directed towards protecting the public interest. The provision of police services is confined by s 2.3(g). This provision shows that the function is directed towards meeting obligations under the general law or statutes or what is objectively reasonable. There is no duty to serve a particular private interest.
Section 2.4 of the Act preserves the responsibility that the community and individual members of it also have to preserve peace and good order and prevent breaches of the law. This provision also requires police officers to act in partnership with the community in performance of the functions of the Police Service.
The objects of the Act are to provide for the maintenance of the Police Service, the membership of the Police Service and the development and administration of the Police Service (s 1.3). Maintenance of the Police Service is provided in s 2.1. Membership of the Police Service is provided for in s 2.2. The administration of the Police Service is the subject of ss 4.1 to 9.8. Sections 7.1 to 7.46 provide a discipline process for police officers. The main purposes of this process include to ensure appropriate standards of discipline are maintained within the Police Service to promote and maintain public confidence in the service.[10]
[10]Police Service Administration Act s 7.1(b).
The objects of the Act and the subject matter dealt with in the Act do not disclose any legislative intention to confer a right of action on an individual for any breach of the Act. The purpose of the Act is for the continuance and administration of an essential service provided by the State for the protection of the whole of the community. The functions conferred on the Police Service are to be discharged for the benefit of the whole community. The Act recognises the obligations the community has to assist the police and the obligations the police have to act in conjunction or partnership with the community. The Act provides a disciplinary regime for the protection of the community and to maintain public confidence in the Police Service. The police disciplinary regime provided for in the Act militates against a conclusion that a statutory duty was intended for the reason identified at paragraph [33] below. The Act is clearly intended to promote the general good.
The purposes of the Police Powers and Responsibilities Act are provided for in section 5:
(a)to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;
(b)to provide powers necessary for effective modern policing and law enforcement;
(c)to provide consistency in the nature and extent of the powers and responsibilities of police officers;
(d)to standardise the way the powers and responsibilities of police officers are to be exercised;
(e)to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;
(f)to enable the public to better understand the nature and extent of the powers and responsibilities of police officers;
(g)to provide for the forced muster of stray stock.
Nothing in these purposes discloses a legislative intention to confer a right of action on an individual who feels aggrieved by the exercise of police powers. The Act is directed towards the general good because, among other matters, it aims to protect the rights of all members of the community against whom police exercise powers. In consolidating police powers, the Act seeks to make those powers clear and comprehensible for the benefit both of the police and the community served by the police. In furnishing police with the powers necessary for modern policing, the Act seeks to give police the powers needed to perform the functions of policing for the benefit of all. The Act also seeks to protect the rights of all persons in their dealings with the police.
Sections 7 and 804 of the Act are also of significance in assisting to determine whether an action lies for breach of statutory duty. This is because, “Availability of other protections and remedies against a wrongful exercise of power has been treated as a factor militating against the existence of a statutory duty…”.[11] Section 7(1) provides that the legislature’s intention is that the police should comply with the Act. To ensure compliance with that intention, s 7(2) provides that a police officer who contravenes the Act may be dealt with as provided by law. Various examples[12] are provided after s 7(2) including that a police officer may be dealt with under the Police Service Administration Act for misconduct. This remedy for non-compliance militates against a conclusion that a statutory duty is intended.
[11]Polar Aviation v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293 at [81].
[12]An example is part of an Act: Acts Interpretation Act 1954 (Qld) s 14(3).
Section 804 of the Police Powers and Responsibilities Act relevantly provides:
“804 Compensation
(1) This section applies if a person suffers loss because—
(a) a police officer exercises powers under this Act; or
…
(2)Compensation is payable by the State to the person whose property is damaged.
(3) …
(4) …
(5)The Minister is to decide the amount of the compensation.
(6)A person who is dissatisfied with the Minister’s decision under subsection (5) may apply to a court, within 28 days, for compensation under this section.
(7) …”
This provision demonstrates that the legislature addressed the question of the protection of property from the conduct of police and provided a remedy of compensation, the extent of which is initially left to the discretion of the executive.
Negligence
The plaintiff submits the police do not have an immunity from an action for negligence. The plaintiff submits that the police owed a duty of care. The defendant submits that the police do not owe a duty of care to a citizen when engaged in the investigation of a complaint by that citizen. The defendant submits that on the pleaded facts no cause of action in negligence can be established. The defendant drew attention to what was said by Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan: “A legislative grant of power to protect the general public does not ordinarily give rise to a duty owed to an individual or to the members of a particular class”.[13] (Footnote omitted).
[13](2002) 211 CLR 540 at [32].
For the reasons which follow, the statement of claim does not disclose a cause of action in negligence against the defendant.
In Graham Barclay Oysters Pty Ltd v Ryan, Gummow and Hayne JJ said:
“146The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
147 Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute. In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law. …
…
149An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. …” (Footnotes omitted)
The statutory functions of the Police Service include the “detection of offenders and the bringing of offenders to justice”.[14] In receiving the plaintiff’s “evidence” of alleged offences on 18 November 2021, and in considering the material provided by the plaintiff between that date and 3 December 2021, the police were exercising the function of determining if offenders had offended and needed to be brought to justice. This function was discharged in the performance of public functions and not on behalf of the complainant (the plaintiff). There is no basis to conclude that a duty was owed to the plaintiff in considering whether offences had been committed which warranted prosecution.
[14]Police Service Administration Act 1990 s 2.3(d).
On the pleaded facts, the plaintiff was not in the position of a person towards whom any undertaking had been given that the police would take action on his complaint. His claim did not rely on any particular or special relationship with the police or a particular police officer.
It is not pleaded that the police had any degree of control over the activities of the administrator of the Facebook site, or of the creator of some of the material published on Facebook. The former was pleaded to reside in Mandurah (which is in Western Australia) and the latter was pleaded to be located in Launceston (Tasmania).
It is not consistent with the functions conferred on the Police Service by s 2.3 of the Police Service Administration Act to regard the Police Service as owing a duty of care to the plaintiff. The functions set out at paragraph 26 above, are clearly functions conferred to protect the general public. So much is readily apparent from s 2.3(a), (b), (f) and (g) in particular. These are provisions which speak of “all” areas of the State, “all” communities, administering the Criminal Code and other statutes in a “responsible, fair and efficient manner and subject to due process of law” and providing services and help “reasonably sought”.
In Sullivan v Moody it was stated:[15]
“… when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”
[15](2001) 207 CLR 562 at [60].
In the statement of claim the plaintiff sought apprehension of offenders[16] and their prosecution.[17] Any duty to the plaintiff to achieve such objectives would run the risk of a conflicting obligation. The Director of Public Prosecutions may furnish guidelines to the Commissioner of the Police Service with respect to prosecutions of offences.[18] The Director’s Guideline[19] made pursuant to s 11(1)(a)(ii) of the Director of Public Prosecutions Act 1984 (Qld) as at 30 June 2024 is addressed to, among others, the police. Guideline 4 is headed “Decision to Prosecute”. It provides: “The prosecution process should be initiated or continued wherever it appears to be in the public interest. … If it is not in the interests of the public that a prosecution should be initiated or continued then it should not be pursued”. There is obvious potential for conflict between the public interest in the continuance or discontinuance of any prosecution and the interest of the plaintiff in seeing that a prosecution takes place.
[16]Statement of claim, paragraph 74.
[17]Statement of claim, paragraph 78.
[18]Director of Public Prosecutions Act 1984 (Qld) s 11(1)(a)(ii).
[19]>
Whether police officers conducting investigations owe a duty of care to persons the subject of investigation or to persons seeking a police investigation has been the subject of consideration previously. No duty of care was held to be owed to either the suspect or the complainant.[20]
[20]Wilson v State of New South Wales (2001) 53 NSWLR 407 at [63], Cran v State of New South Wales (2004) 62 NSWLR 95 at [63], Groom v State of South Australia [2017] SASCFC 35 at [36], Abood v State of Queensland [2024] QSC 225 at [38].
Human Rights Act
The statement of claim pleads that the police made “a decision” in a way that was not compatible with the plaintiff’s human rights and failed to give proper consideration to his human rights.[21] Four rights are referred to: recognition and equality before the law,[22] freedom of expression,[23] privacy and reputation,[24] and protection of families and children.[25] Damages to the extent of $65,000 are sought for denial of these rights.[26]
[21]Statement of claim, paragraphs 68 and 69.
[22]Human Rights Act s 15.
[23]Human Rights Act s 21.
[24]Human Rights Act s 25.
[25]Human Rights Act s 26.
[26]Statement of claim, paragraph 80.
Section 58 of the Human Rights Act relevantly provides:
“58 Conduct of public entities
(1) It is unlawful for a public entity—
(a) to act or make a decision in a way that is not compatible with human rights; or
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.
…
(6) …”
Section 59 of the Act relevantly provides:
“59 Legal proceedings
(1) Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
(2) The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
(3) However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
(4) …
…
(6) …”
Leaving to one side the difficulty which s 59(3) presents in relation to a claim for damages on the ground of unlawfulness arising under s 58, s 59 provides a means by which a person can claim relief for a breach of s 58. However, the effect of s 59 is that the relief for a breach of s 58 must be added to or joined with a claim for another action. In Innes v Electoral Commission of Queensland & Anor (No 2) it was stated that:[27]
“Sections 58 and 59 are commonly referred to as the ‘piggyback’ provisions.
A person who claims that a public entity has breached s 58 can only bring legal proceedings to vindicate that claim by attaching it to an independent ground of unlawfulness (s 59(1)). In other words, a contravention of s 58 does not of itself give rise to any claim to relief or remedy. To achieve relief or remedy, the person alleging a breach of s 58 must also have a claim arising independently of the HR Act upon which the s 58 claim might ‘piggyback’.”
[27](2020) 5 QR 623 at [268]-[269].
As stated above, the plaintiff has no reasonable cause of action for either a breach of statutory duty or negligence therefore any claim for relief under s 59 of the Human Rights Act cannot be made out.
Conclusion
Had I not been persuaded that there should be judgment for the defendant it would have been appropriate to order that the statement of claim be struck out on the basis it did not disclose a reasonable cause of action. In that circumstance leave to replead would not have been granted in view of the reasons set out above.
Order
The order of the Court is:
1. Pursuant to r 293(2) of the UCPR judgment be entered for the defendant.
I will hear the parties as to costs.
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