Gibbs v Qld

[2000] QCA 33

[GIBBS v QLD & Ors]

[2000] QCA 33

COURT OF APPEAL

McPHERSON JA
WILLIAMS J
WILSON J

Appeal No 7529 of 1999

ALAN HARRY GIBBS  Appellant (Plaintiff)

and

COMMISSIONER OF POLICE  Respondent (Defendant)

and

THE STATE OF QUEENSLAND                   Respondent (Defendant)

Appeal No 1057 of 1999

ALAN HARRY GIBBS  Applicant (Plaintiff)

and

COMMISSIONER OF POLICE              First Respondent (Defendant)

and

THE STATE OF QUEENSLAND            Second Respondent (Defendant)

BRISBANE

..DATE 21/02/2000

JUDGMENT

WILSON J:  This is an application for leave to appeal against a decision of a District Court Judge made on
28 July 1999 striking out the plaint and dismissing the action.

The application to this Court was filed on 29 November 1999. Under rule 748 of the Uniform Civil Procedure Rules the time for appeal is 28 days from the decision appealed from. Practice Direction number 26 of 1999 provides that in the case of an application for leave to appeal the application is to be filed within 28 days of the decision of the primary Court or within any extended time allowed by the Court of Appeal.

When the Court drew it to the applicant's attention that the application had been filed out of time, he made an oral application for an extension of time in which to apply for leave to appeal.  Factors relevant to such an application include the merits of the application sought to be made, the absence of any adequate explanation for the delay and the absence of any assertion of prejudice on the part of the respondent.

As Chief Justice Barwick said in General Steel Industries Incorporated v. The Commissioner for Railways New South Wales (1964) 112 Commonwealth Law Reports 125 at 128-9, the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.

The applicant's action against The Commissioner of Police and the State of Queensland is for damages for losses caused by the failure or refusal of police officers to investigate certain complaints.  Two causes of action are relied on, breach of statutory duty and negligence.

The applicant contends that he has a cause of action for damages for breach of a statutory duty to be found in section 2.3(g) of the Police Service Administration Act 1990. That provision provides:

"The functions of the Police Service are:

(g)the provision of such services, and the rendering of such assistance in situations of emergency or otherwise, as are required of officers by lawful authority or the reasonable expectations of the community, or as are reasonably sought of officers by members of the community."

Not every failure to satisfy the requirements of a statute entitles individual members of the community to sue for damages.  Whether a legislative provision creates a civil cause of action is primarily a question of statutory construction.

In my view, section 2.3(g) does no more than state a function of the Police Service. It does not expressly create criminal or civil liability for non-performance of that function. The primary Judge concluded that it does not give rise to duties actionable at law for damages. In my respectful opinion, his decision is not attended with sufficient doubt to justify the grant of leave to appeal.

In Hill v. The Chief Constable of West Yorkshire [1989]
1 Appeal Cases 53, the House of Lords held that as a matter of public policy police are immune from actions for negligence in respect of their activities in the investigation and suppression of crime.  This question appears not to have been considered at appellate level in this country. 

In Osmond v. The United Kingdom, 28 October 1988, the European Court of Human Rights held that that immunity is not absolute.  The decision turned on article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is not part of Australian Law. 

In relevant respects the present case is not distinguishable from Hill.  The applicant has not demonstrated that there is sufficient doubt about the correctness of Hill to justify the grant of leave to appeal to argue the question of principle in this Court. 

In all the circumstances, I would refuse an extension of time in which to apply for leave to appeal and it follows that the application for leave itself fails.  I would dismiss the application with costs.

McPHERSON JA:  I agree.  I also agree that the application for leave to appeal should be dismissed with costs.

WILLIAMS J:  I agree.

McPHERSON JA:  The order is as I have stated it; that is, that the application for leave to appeal is dismissed with costs.

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