Gillett v State of New South Wales

[2009] NSWSC 421

CITATION:	Gillett v State of New South Wales [2009] NSWSC 421
HEARING DATE(S):	15 May 2009
JUDGMENT DATE :	29 May 2009
JUDGMENT OF:	Schmidt AJ
DECISION:	Motion dismissed.
CATCHWORDS:	PROCEDURE - Supreme Court procedure - New South Wales - pleadings - statement of claim - application to strike out claim for breach of statutory duty and negligence - police - duty of care - section 15A of the Director of Public Prosecutions Act 1986 - orders refused - costs
LEGISLATION CITED:	Costs in Criminal Cases Act 1967 Criminal Procedure Amendment (Pre Trial Disclosure) Act 2001 Crown Proceedings Act 1988 Director of Public Prosecutions Act 1986 Law Reform (Vicarious Liability) Act 1983 Limitation Act 1969 Mental Health Act 1986 (Vic) Police Act 1990 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Baker-Morrison v State of New South Wales [2009] NSWCA 35 Cran v State of New South Wales [2004] NSWCA 92 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 McDonald v Girkaid Pty Ltd [2004] NSWCA 297 O’Connor v SP Bray Limited (1936) 56 CLR 464 Pyrenees Shire Council v Day (1998) 192 CLR 330 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 State of New South Wales v Paige (2002) 60 NSWLR 371 Stuart v Kirkland - Veenstra [2009] HCA 15 Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562 Tame v State of New South Wales (2002) 211 CLR 317
PARTIES:	Plaintiff - Nathaniel Gillett Defendant - State of New South Wales
FILE NUMBER(S):	SC 20458/08
COUNSEL:	Plaintiff - Mr J Gormly, SC with Mr M Perry, counsel Defendant - Mr G Giagios, counsel
SOLICITORS:	Plaintiff - De Luca-Leonard, Solicitor Defendant - IV Knight, Crown Solicitor

- 31 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 29 May 2009

20458/2008 NATHANIEL GILLETT v STATE OF NEW SOUTH WALES

JUDGMENT

1 HER HONOUR: This judgment concerns an amended notice of motion filed by the defendant in February 2009, whereby the defendant seeks the dismissal of the plaintiff’s statement of claim pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005, or in the alternative, that various paragraphs of the statement be struck out, pursuant to Rule 14.8.

2 At the hearing the parties announced that two other motions concerning subpoenas directed to the Commissioner of Police and the Director of Public Prosecutions had been resolved. I also dealt with a notice of motion filed by the plaintiff in April 2009, seeking leave to file an amended statement of claim. That leave was granted, with the result that the parties directed their submissions to the amended statement of claim.

3 The plaintiff pursues claims in damages pursuant to the Crown Proceedings Act 1988 and the Law Reform (Vicarious Liability) Act 1983, as well as alleging negligence and breach of statutory duty. The plaintiff was a police officer employed by the Police Service under the Police Act 1990, when, in March 2003, he arrested an accused person. The plaintiff was later the subject of an inquiry conducted by Senior Sergeant Richard Gaskin in relation to his conduct during this arrest. The result of the inquiry was the laying of criminal charges of assault, conspiracy to pervert the course of justice and making a collusive agreement. The plaintiff was suspended from his employment in October 2003.

4 During the course of the criminal trial before Patten DCJ in June 2004, the charges were withdrawn. The plaintiff complained that he sustained serious loss, injury and damage as the result of the defendant’s negligence and/or breach of statutory duty, particularly its failure to disclose to the Director of Public Prosecutions ('DPP'), all relevant information obtained during the investigation, which might reasonably be expected to have assisted his case. This damage flowed from the breach of obligations imposed on the defendant by s 15A of the Director of Public Prosecutions Act 1986 and ss 139(3), and 148(2) and/or (3) of the Police Act.

The parties’ cases

5 The defendant’s case was that the plaintiff’s claim would be dismissed, because it concerned allegations of negligence arising during the course of a criminal investigation and the resulting charges laid against the plaintiff. No duty of care is owed to an accused, or the members of the public generally, in so far as such a criminal investigation is concerned. (Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; State of New South Wales v Paige (2002) 60 NSWLR 371). It followed that no maintainable cause of action was disclosed and the statement of claim should be dismissed, the plaintiff’s case being so manifestly untenable, that the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, was satisfied.

6 Even if there were a cause of action of the type claimed by the plaintiff, it was not maintainable, given that it was brought outside the limitation period imposed by s 50C of the Limitation Act 1969, the relevant date being October 2003. The proceedings were commenced more than 2 years after the expiry of the period.

7 The plaintiff's case was that the critical part of his claim was in paragraph 14(d), which provides:

Gaskin did not provide to the DPP, in adequate time, material or potential evidence that militated against the viability of the allegations and/or criminal charges against the Plaintiff.

8 The duty of care claimed was not one which arose from the criminal investigation. Breach of s 15A of the Director of Public Prosecutions Act was alleged. Had the material in question been provided to the DPP as that section required, it was likely that no criminal proceedings would have been instituted against the plaintiff. At the trial, after the completion of the Crown’s first witness, it was conceded by the prosecutor that there was no evidence capable of establishing a prima facie case against the plaintiff. No further evidence was offered and the trial judge was invited to direct the jury to acquit.

9 An application for costs was then made under the Costs in Criminal Cases Act 1967, which allowed the Court to issue a certificate on acquittal, in circumstances where, in the opinion of the Court, if the prosecution had been in possession of the evidence of all the relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. In dealing with that application, the prosecutor did not suggest to the Court that the institution of the proceedings had been reasonable.

10 While it was accepted for the plaintiff that a police officer did not owe either an accused, or members of the public any duty of care in relation to a criminal investigation, it was argued that this was a different circumstance. The breach of duty relied on did not relate to the criminal investigation, but rather to the failure to disclose relevant information which might reasonably be expected to have assisted the case of the accused in the criminal proceedings. A duty of care arose in that respect, both under s 15A of the Director of Public Prosecutions Act and at common law.

11 The question lying between the parties involved questions of statutory construction. (See McDonald v Girkaid Pty Ltd [2004] NSWCA 297.) Even if there was no parliamentary intention to create a private right of action for breach of s 15A, the section could still be relied on, in order to establish negligence. (See O’Connor v SP Bray Limited (1936) 56 CLR 464 at 477).

12 The claim advanced was consistent with public policy, the legislation being designed to prevent the police from being selective about what material arising from an investigation would be provided to the DPP. While the general rule was that it was undesirable to inhibit criminal investigations by the risk of civil liability, as a matter of public policy there was a boundary to the operation of that rule. In this case, it was not the course of the investigation with which the alleged breach was concerned, but rather with a clear, discrete and straightforward statutory duty to disclose relevant information to the DPP.

13 The relationship between the parties was also argued to be relevant to the existence of the duty contended for, given the defendant’s obligation to provide the plaintiff with a safe system of work.

14 At the least, it would be concluded that the plaintiff’s case was not manifestly groundless and so obviously untenable, that it could be concluded at this stage, that it had no prospect of succeeding. It followed that the defendant could not meet the General Steel test.

15 In its reply, the defendant observed that the plaintiff relied on no authority to support the existence of the claimed duty now sought to be raised. The distinction sought to be drawn between the absence of a duty during an investigation and that arising under s 15A was argued to be meaningless, given the provisions of s 15A. The duty there created continued until the conclusion of the criminal proceedings. Investigations could continue during such proceedings. Further, it was relevant that the duty relied on was owed to the DPP, not the plaintiff.

16 The claim amounted to a cause of action for negligent prosecution. There is no such cause of action known to the law and sound public policy as to why such a cause of action should be rejected, particularly when malicious prosecution is not alleged.

17 Section 15A could not be construed as conferring private causes of action for failure to discharge the duty imposed. The section must be construed in the context of the functions conferred on the DPP. The purpose of the section was to ensure a fair trial. Were the plaintiff correct, a police officer could be sued by the DPP for breach of the obligation imposed by the section. Such an outcome would be preposterous and would disturb the law in relation to police officers’ immunity from actions in negligence with respect to investigations and criminal prosecutions.

18 The principle of coherence also stood in the way of the plaintiff’s claim. The law only recognised malicious prosecution and misfeasance in public office, the essential element of which is malice. The evil to which the claimed duty was directed was argued to be fanciful.

Consideration

19 The Court has the power to make the orders sought, the onus to be met by the defendant is that discussed by the High Court in General Steel. That test is a particularly stringent one. An application may only be dismissed at this early stage, where it is established by the defendant that there is no reasonable cause of action disclosed on the pleadings and where it is clear that the plaintiff’s case is so untenable, that it cannot possibly succeed. The power must be exercised with great care, in cases which are doomed to fail and where no pleading amendment could cure the defect.

20 While it appears that the plaintiff faces considerable difficulty in the case which he wishes to advance, I am satisfied that it may not be concluded at this stage, that it is doomed to failure.

21 The claim rests particularly on s 15A of the Director of Public Prosecutions Act, inserted by the Criminal Procedure Amendment (Pre Trial Disclosure) Act 2001. The section provides:

15A Disclosures by investigating police officers

(1) Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.

(2) The duty of disclosure continues until one of the following happens:

(a) the Director decides that the accused person will not be prosecuted for the alleged offence,

(b) the prosecution is terminated,

(c) the accused person is convicted or acquitted.

(3) Police officers investigating alleged indictable offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.

(4) The regulations may make provision for or with respect to the duties of police officers under this section, including for or with respect to:

(a) the recording of any such information, documents or other things, and

(b) verification of compliance with any such duty.

(5) The duty imposed by this section is in addition to any other duties of police officers in connection with the investigation and prosecution of offences.

22 The defendant argued that the duty imposed by s 15A is owed by police officers to the DPP and not to the plaintiff and that any remedy, so far as the plaintiff is concerned, if there is one, is the dismissal of the criminal proceedings brought, and perhaps a costs order.

23 Section 15A, it must be noted, appears in Part 3 Functions, of the Director of Public Prosecutions Act, which also empowers the Director to take certain steps under ss 16 and 18. Those sections provide:

16 Directions to police etc by Director

(1) The Director may, by order in writing, give directions referred to in subsection (2) to:

(a) the Commissioner of Police, or

(b) any other person who institutes or conducts prosecutions for offences.

(2) Directions may be given requiring specified information or kinds of information to be referred to the Director for the purpose of enabling the Director to consider:
(a) instituting or carrying on a prosecution or prosecutions for a specified offence or class of offences,

(b) instituting, carrying on or taking over proceedings for a specified offence or class of offences, or

(c) instituting, carrying on or taking over other proceedings in connection with functions conferred on the Director whether under this Act or otherwise.

(3) A person to whom such a direction is given shall comply with the direction.

(4) In this section:

offence means an indictable offence or a prescribed summary offence.



18 Request for assistance from police etc by Director

(1) If the Director is considering instituting or taking over, or has instituted or taken over, a prosecution for an offence, the Director may, by order in writing, request:

(a) the Commissioner of Police, or

(b) any other person who:

(i) conducts investigations in relation to offences, or

(ii) institutes or conducts prosecutions for offences,

to investigate or further investigate matters associated with the alleged commission of the offence.

(2) The Commissioner or other person shall, so far as practicable, comply with the request.

24 It is apparent that these powers are not to enable the DPP to deal with a police officer’s failure to comply with the duty imposed by s 15A, but, nevertheless, in the event of such a failure coming to light, they are undoubtedly powers which could be utilised by the DPP to ensure that the information in question is provided by the police officer, as s15A requires in any event.

25 As the defendant argued, so far as a police officer who fails to act as s 15A requires is concerned, any practical penalty will be that which flows from sanctions which might flow from the exercise of discretions granted the Police Commissioner under the Police Act, if he takes the view that there has been some misconduct or unsatisfactory performance, for example (see ss 173 and 181D). That legislation also permits complaints to be made about a police officer by any person, including a person such as the plaintiff (see s 126). By s 201, it is also provided that:

201 Neglect of duty etc

A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.
Maximum penalty: 20 penalty units.

26 So far as the plaintiff is concerned, however, absent the rights here claimed, there is no avenue for pursuit of the serious loss and damages it is claimed he has suffered, as the result of the breach of s 15A. The torts of malicious prosecution and malfeasance in public office are not available, the plaintiff frankly concedes, given that it is accepted that the exculpatory material which the plaintiff complains was not provided to the DPP, was not deliberately concealed. It is accepted that what occurred, flowed from negligence, or an error of some kind.

27 Nevertheless, that situation is claimed to have caused the plaintiff very serious loss and damage and to have given rise to two claims, one in common law negligence and the other, for breach of statutory duty.

28 It is in that context that the question of whether the Parliament intended, by the enactment of s 15A, to permit a private right to bring an action for breach of the statutory duty must be considered. In McDonald, the question of whether breach of a statutory duty gives rise to a civil cause of action was considered, in the context of safety legislation. It was observed:

170 The search for a legislative intention that a statutory provision which is completely silent on the point confers a private cause of action is a somewhat illusory exercise, a point to which Dixon J adverted in the passage from O’Connor v S P Bray Limited set out above. In Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 461 – 462, McHugh J and Gummow J referred to the added difficulty which arises where a private cause of action is said to be created by delegated legislation in the form of regulations made under power conferred on the Executive by statute. In such circumstances, their Honours pointed out, “[I]f the statute did not expressly confer on the Executive a power by regulation to create an action for damages at the suit of any person injured by breach of the substantive provisions of the regulation, it must be difficult to construe the statute and the delegated legislation as impliedly bringing about that result”.

171 The proposition to which their Honours referred was one which enjoyed currency prior to the decision in Australian Iron and Steel Pty Limited (1957) 97 CLR 89 in which Kitto J’s judgment made it plain (at 98) that it was based on the fallacy that the question whether a private cause of action was created depended on discerning a “disclosure of a positive intention to create such a right.” Following that decision, as was pointed out in The Liability of Employers, Glass, McHugh and Douglas (The Law Book Company Limited, second edition at 115), “[a]ctions for breach of duties created by regulation … proliferated”. McHugh and Gummow JJ’s observation had particular significance in Byrne v Australian Airlines Limited where it was being contended that “the silent statute operates upon an award made by an arbitral body established by the statute”. It cannot, however, resolve the outcome of the question whether regulations 18 and 19 created a private cause of action.

172 The long title to the Dangerous Goods Act 1975 describes the Act as one “to consolidate and amend the law relating to explosives and other dangerous substances”.

173 It might be accepted, therefore, that the purpose of the Dangerous Goods Act and the Dangerous Goods Regulation was to regulate the keeping, handling and use of dangerous goods in order, inter alia, to reduce the risk of damage by fire or explosion: cf Wright v T I L Services Pty Limited (1956) SR (NSW) 413 at 415 per Owen J construing the Inflammable Liquid Act 1915 and that, therefore, they are directed to the interests of the safety of members of the public or a class of them (O’Connor v S P Bray Limited).

174 However, the question whether a statutory duty confers a correlative private right of action also turns on whether the statute imposes a duty to take “a specific precaution” (O’Connor v S P Bray Limited) or “measures for the safety of others” (John Pfeiffer Pty Limited v Canny).

175 In Storozuk v Commissioner for Railways (1963) 63 SR (NSW) 581 at 593 – 594, Brereton J (with whose reasons Else-Mitchell J agreed) doubted whether regulations which expressed an obligation in terms of a requirement to take “all practicable precautions” founded a civil action. This was because the phrase did not “prescribe or define precisely the means that must be taken …” (referring to Windeyer J in General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 at 257). In Slivak v Lurgi (Australia) Pty Limited [2001] HCA 6; (2001) 205 CLR 304, however, all members of the High Court held, respectively, that a provision of the Occupational Health, Safety & Welfare Act 1986 (SA) which turned on the phrase “ensure so far as reasonably practicable” created a private cause of action (at [27] – [29] per Gleeson CJ, Gummow and Hayne JJ, at [50] per Gaudron J, at [87] per Callinan J).

29 In the case of this legislation, the purpose of the provision in question is, it was accepted by the parties, to ensure a fair trial. This follows because of the prosecutorial obligation to disclose information, which a police officer is obliged by s 15A to provide to the DPP, to a defendant. The effect of the duty appears to go somewhat further. By the section, police officers ‘investigating alleged indictable offences’ are obliged to provide the DPP with ‘all relevant information, documents or other things obtained during the investigation’, whether it assists the prosecution case, or the defence, no matter when it comes into their hands, until either:

a) the Director decides that the accused person will not be prosecuted for the alleged offence,

(b) the prosecution is terminated,

(c) the accused person is convicted or acquitted.

30 The section does not only concern itself with a trial, but also with the question of whether there will be a prosecution. It follows that the real consequences of the ongoing duty may include not only ensuring a fair trial if charges are pursued, but also that prosecutions are not pursued in the face of information which shows that offences charged were not committed, and also conversely, that they are pursued, when there is information which shows that they were committed. That accords with the explanation of the amendment given in the Second Reading Speech, where it was observed by The Hon. E. M. Obeid (Minister for Mineral Resources, and Minister for Fisheries), that:

In addition to providing for case-managed pre-trial disclosure, the bill provides other amendments designed to further enhance the efficiency and fairness of the criminal justice system. New section 63A prevents a prosecutor from amending an indictment that has been presented at trial without the accused's consent or the court's leave. This will improve the practices of the DPP and the Crown in ensuring cases getting on to trial are ready to go. Schedule 2 amends the Director of Public Prosecutions Act 1986 to formalise the general duty placed on police officers to disclose to prosecuting authorities all relevant information and material obtained during the investigation of an indictable offence. Schedule 3 amends the Crimes (Sentencing Procedure) Act 1999 to enable courts to take into account compliance with pre-trial disclosure requirements when sentencing an offender.

Pre-trial disclosure carries significant benefits for the parties involved in a case, the courts and the criminal justice system generally. It enables the parties to focus on issues that are in contention, rather than having to prepare evidence in relation to issues that are not in dispute. This will result in the more efficient use of court time, the time of counsel and less inconvenience to witnesses whose evidence would not in any event be challenged. Adjournments in response to unexpected developments in the course of a trial would be minimised. The defendant is in a better position to make an informed decision about whether or not to plead guilty, based on the strength of the disclosed prosecution case. If defendants are pleading not guilty, they are assisted in preparing for the trial by being made aware of the prosecution case in advance.

Furthermore, pre-trial disclosure ensures that prosecutors disclose all evidence available to them, not just the evidence in the prosecution's possession that is favourable to its case. Let me emphasise: the defence response is premised on full and timely disclosure of the prosecution case. These provisions do not alter or qualify the fundamental principle that it is the Crown's responsibility to prove the accused's guilt beyond a reasonable doubt, nor do they affect any privilege or immunity that applies under the law to the disclosure of information, such as client legal privilege or sexual assault communication privilege.

31 As the defendant argued, it is undoubted that neither the section itself, nor the second reading speeches expressly provide for a private cause of action for breach of s 15A. That is not unusual. What has to be ascertained, nevertheless, is whether such a right was intended.

32 As has been observed in the authorities, care needs to be taken in using Second Reading Speeches as aids to interpretation. They are regarded as rarely being useful in ascertain the meaning of a provision. (See Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Reports 81-951). Nevertheless, they have been regarded as relevant when it is the purpose of the legislation, or the mischief to which it is directed, which is being considered. (See the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006) at [3.4]).

33 In this context, Kitto JJ observed in Sovar v Henry Lane Pty Ltd (167) 116 CLR 397 at 405:

The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation: see Martin v. Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) [(1934) 34 S.R. (N.S.W.) 593, at p. 596], and cases there cited. It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances.

34 It is in that regard, it seems to me, that the Second Reading Speech usefully sheds some useful light on ‘the nature and terms’ of s15A. It may be accepted that the Second Reading Speech does not itself assist in a determination of the meaning of the provision actually enacted by the Parliament, or indeed, the question of whether there was a legislative intention to confer a private right of action on a defendant, where the duty imposed by s 15A is not observed. Nevertheless, the meaning of the section is not to be determined only by a consideration of the words used in the section. Attention must also be paid to matters such as the pre-existing state of the law, as well as the ‘evil’ to which the section is directed.

35 In the case of police officers, it has long been accepted that there is no private right of action in relation to the conduct of police officers, while they are conducting a criminal investigation (see D'Orta-Ekenaike v Victoria Legal Aid and Another (2005) 223 CLR 1 at 37). That, for the defendant, resolves the question of whether the right here claimed can be found to exist.

36 The Second Reading Speech suggests, however, that what the Parliament was concerned with in enacting s15A, was enhancing the fairness and efficiency of the criminal justice system by requiring disclosure of relevant information obtained during an investigation, rather than with the conduct of such investigations. That was perceived to bring with it a number of specified benefits for parties, particularly defendants, as well as the courts and witnesses. The Speech suggests that the Parliament was not directing its attention to the investigation of crimes and anything connected with such an investigation, but rather with the disclosure of what such investigations might uncover.

37 As the High Court observed in Sullivan v Moody at [42], the fact that it is foreseeable that harm will be suffered by a defendant such as this plaintiff, if a police officer does not adhere to the duty now imposed by s 15A, is not a sufficient basis upon which it may be concluded that the claimed right of private action exists.

38 What must rather be considered is whether the section as it has been enacted, requiring as it does the disclosure of relevant information obtained from a criminal investigation to the DPP, arguably gives rise to the private cause of action claimed by the plaintiff.

39 The plaintiff’s argument that the statutory duty concerns itself with disclosure of what the criminal investigation has revealed, not the conduct of the investigation itself, has an obvious foundation in the words used in the section itself. The question is whether this gives rise to the right for which the plaintiff contends.

40 It was argued for the defendant that there were sound public policy reasons for accepting that the claimed cause of action did not exist, consistently with those which underpinned the traditional view that no such claims could arise from the conduct of a criminal investigation. It seems to me, nevertheless, that as the plaintiff claims, it is at least arguable that the public interest and the interests of the defendant now coincide at the point of disclosure of information obtained during a criminal investigation, given what s 15A requires.

41 That situation, it seems to me is arguably unlike that considered by the Court of Appeal in Cran v State of New South Wales [2004] NSWCA 92. There at [71], Ipp J observed:

71 To paraphrase Steyn LJ (at 349), the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence. The police would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against them. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of the police would be diverted from concentrating on their prime functions. That would be likely to happen not only during the investigative and preventative processes, and the administrative tasks ancillary thereto, but also when the police are sued in negligence by aggrieved defendants. The police would be constantly enmeshed in an avalanche of civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the police and the quality of the services they provide.

72 In Tahche v Abboud (No 1) [2002] VSC 36, Smith J was concerned with whether police officers owed a duty to the plaintiff to disclose to him, alternatively to the Director of Public Prosecutions, certain information that would have assisted the plaintiff in defending the allegations of criminal conduct that had been made against him. His Honour suggested that a distinction should be drawn “between those officers who arguably had the responsibility to make decisions about whether to take the review of the plaintiff’s conviction further and those officers whose task it was to gather the material and contribute to any discussion of it” (at [69]).

73 With respect to his Honour, I do not think that drawing such a distinction overcomes the policy factors identified in Elguzouli-Daf. Those factors apply irrespective of the particular task individual police officers are required to carry out. Furthermore, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Attempts to classify and compartmentalise police functions into one or other of these categories would be likely to generate uncertainty, sophistry and sterile litigation.

42 Santow J agreed, observing at [63] that:

63 Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity.

43 What has here occurred, it has to be considered, is that by s 15A the Parliament has imposed a duty on police officers to disclose ‘all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person’ to the DPP. The legislature has seen fit to impose that obligation on police officers, whatever an investigation reveals. It follows that meeting that obligation cannot have any inhibiting effect on police investigations, or crime prevention. Nor, it would seem, could the claimed private cause of action flowing from a failure to adhere to the statutory duty result in an avalanche of civil litigation. Indeed, it was the defendant’s case that no complaint such as this has ever emerged since the enactment of s 15A. That is, presumably, because the obligation having been imposed by the Parliament as it has, it is one which police officers meet, as the legislation requires. The ‘bright line’ between administrative and investigative tasks, which their Honours discussed in Cran, it seems, may have been drawn by the Parliament in s 15A.

44 As Santow J observed at [62], police officers who commit criminal acts by fabricating evidence or giving false evidence have no immunity. The claim that there is also no immunity where there is a breach of the duty imposed by s 15A, appears to me also to be arguable. The provisions of s 201 of the Police Act lend support to this possibility.

45 The policy factors to which Ipp J referred, would appear to be those discussed by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349:

“That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the C.P.S. to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of C.P.S. lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the C.P.S. is sued in negligence by aggrieved defendants. The C.P.S. would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the C.P.S. and the quality of our criminal justice system.”

46 Given what s 15A requires of the police officers upon whom the duty is imposed, police officers who wanted to protect themselves from negligence claims would act to ensure that they met the duty which the section imposes, in any event. It follows that the policy concerns which Steyn J was concerned with, would not arise from the duty here claimed by the plaintiff. Police officers would certainly not be ‘wasting’ time and resources in meeting an obviously important statutorily imposed duty, to provide relevant information to the DPP.

47 In Stuart v Kirkland - Veenstra [2009] HCA 15 the High Court was recently concerned with the question of whether two police officers owed a duty of care to Mr Veenstra and his wife, to take reasonable steps to prevent foreseeable harm to Mr Veenstra, at his own hand. Those reasonable steps were identified to be the exercise of a statutory power given by s 10 of the Mental Health Act 1986 (Vic). A claim for breach of statutory duty had there been abandoned at trial, correctly, it was noted by Gummow, Hayne and Heydon JJ (at [110]), who also observed:

112 There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan [(2002) 211 CLR 540 at 596–597 [146].], the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) "turns on a close examination of the terms, scope and purpose of the relevant statutory regime". Does that regime erect or facilitate "a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence"[(2002) 211 CLR 540 at 596–597 [146].]?

113 Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 597 [149]. See also Howard v Jarvis (1958) 98 CLR 177 at 183; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550–552 and 556–557 ; [1994] HCA 13.], the degree of vulnerability of those who depend on the proper exercise of the relevant power [Graham Barclay Oysters (2002) 211 CLR 540 at 597 [149]. See also Burnie Port Authority (1994) 179 CLR 520 at 551; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 24–25 [44]–[46], 38–39 [91]–[93], 40–41 [100] ; [1999] HCA 59.], and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute [Graham Barclay Oysters (2002) 211 CLR 540 at 597–598 [149]; Sullivan v Moody (2001) 207 CLR 562 at 581–582 [55]–[62] ; [2001] HCA 59.]. Other considerations may be relevant [Graham Barclay Oysters (2002) 211 CLR 540 at 598 [149]; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 16–17 [47], 23–24 [76] ; [2001] HCA 19.].


…


117 Contrary to the plaintiff's submissions, this was not a case in which principles of the kind examined in Pyrenees Shire Council v Day [(1998) 192 CLR 330 ; [1998] HCA 3.] are engaged. In that case, a public authority had entered upon [Pyrenees Shire Council v Day (1998) 192 CLR 330 at 391 [177].] the exercise of its statutory powers with respect to a particular subject-matter (fire prevention). The authority was held to have owed a duty to take reasonable care in exercising those powers. But the case was a particular example of the general proposition [Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 ; [1957] HCA 14.] that "when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered".

48 In this case, it is not a case of a ‘statutory power to act in a particular way’, which arises for consideration, but a statutory duty to do so. Adhering to the duty would certainly prevent the loss and damage which could undoubtedly flow to a defendant, if a prosecution is pursued, even though the police have evidence which shows that the offence charged was not committed. Section 15A requires that such information be provided to the DPP.

49 Crennan and Kiefel JJ observed:

130 The common law duty in question is to be distinguished from one arising under the statute which provides the public authority's powers. The action for breach of statutory duty, although itself a tort, is regarded as distinct from the tort of negligence. It will be necessary to return to the elements of this action in more detail later in these reasons. In a case where a general duty of care is alleged, it is said that the statute cannot itself be regarded as the source of the duty; rather it is the foundation or setting for it [Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 434 per Gibbs CJ, 459–460 per Mason J; and see Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 60 [163] per Gummow J.]. The duty of care is said to arise independently of the statute [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 575 [80] per McHugh J.]. The existence of statutory powers is necessary, but not sufficient, to give rise to a duty of care [Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 434 per Gibbs CJ; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 622 [289] per Hayne J; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 575–576 [80]–[81] per McHugh J.].

131 No guiding principle, by which an authority might be considered to be obliged to exercise its powers at common law, has been identified; the search continues [Brodie v Singleton Shire Council (2001) 206 CLR 512 at 630 [316] per Hayne J.]. There is agreement that the statutory powers in question must be directed towards some identifiable class or individual, or their property, as distinct from the public at large [Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 40 [99] per McHugh J; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 633 [326] per Hayne J; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 562 [32] per Gleeson CJ, 575 [79] per McHugh J.].

132 Different factors have been identified, from time to time, as relevant to the existence of a duty of care. Not all have continued to be regarded as useful. Notions of proximity and general reliance are no longer considered to provide the answer to the question of whether an authority should be considered to have been obliged to exercise its powers. In this case the majority in the Court of Appeal identified as of particular relevance the vulnerability of the plaintiff's husband and the control that the officers had over the risk of harm which eventuated, because of the powers given by s 10. The majority emphasised that the Act intended those powers to be used to protect a person such as him.

133 The vulnerability of a plaintiff was referred to in Pyrenees Shire Council v Day [(1998) 192 CLR 330; [1998] HCA 3.] as an aspect of the plaintiff's supposed reliance upon an authority to use its powers [See Pyrenees Shire Council v Day (1998) 192 CLR 330 at 361 [77] per Toohey J, 372–373 [116] per McHugh J. And see also Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 24 [43] per Gaudron J and the cases therein cited, in particular Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; [1994] HCA 13; Hill v Van Erp (1997) 188 CLR 159 at 186 per Dawson J, 216 per McHugh J; [1997] HCA 9; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [11] and 195 [13] per Gleeson CJ, 202 [41]–[42] per Gaudron J, 236 [149]–[151] per McHugh J, 259 [216] per Gummow J, 289 [296] per Kirby J and 328 [416] per Callinan J; [1999] HCA 36. See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 577 [84] per McHugh J, 631–632 [254] per Kirby J and 664 [321] per Callinan J.]. A focus on vulnerability may in part explain the decision in Crimmins v Stevedoring Industry Finance Committee [(1999) 200 CLR 1 at 24–25 [43]–[44] per Gaudron J, 40–41 [100] per McHugh J, 85 [233] per Kirby J.]. It has not been universally accepted as a useful analytical tool [Brodie v Singleton Shire Council (2001) 206 CLR 512 at 627 [308] per Hayne J.]. In Graham Barclay Oysters Pty Ltd v Ryan, Gummow and Hayne JJ treated the degree of a plaintiff's vulnerability as part only of an evaluation as to whether a relationship may be seen to exist between a statutory authority and the class of persons in question [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 597-598 [149].]. Establishing the existence of a relationship between a plaintiff and a public authority has the advantage of coherence with the exceptions, already recognised by the common law, to the general rule that there is no duty of affirmative action.

50 Bearing these considerations in mind, it can be seen that given what s 15A is concerned with, a duty to disclose information to the DPP, no questions of any discretion on the part of a police officer on whom the duty is imposed, arises. A defendant placed in a position where a police officer has information which shows that an offence has not been committed, but who fails to provide the information to the DPP, contrary to the duty imposed by s 15A, is plainly in a particularly vulnerable position, as the plaintiff argued. It follows that in so far as vulnerability is relevant to the question of whether the Parliament intended that breach of s 15A give rise to a private case of action, it appears to be present here.

51 Crennan and Kiefel JJ also considered these questions, observing:

133 The vulnerability of a plaintiff was referred to in Pyrenees Shire Council v Day [(1998) 192 CLR 330; [1998] HCA 3.] as an aspect of the plaintiff's supposed reliance upon an authority to use its powers [See Pyrenees Shire Council v Day (1998) 192 CLR 330 at 361 [77] per Toohey J, 372–373 [116] per McHugh J. And see also Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 24 [43] per Gaudron J and the cases therein cited, in particular Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; [1994] HCA 13; Hill v Van Erp (1997) 188 CLR 159 at 186 per Dawson J, 216 per McHugh J; [1997] HCA 9; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [11] and 195 [13] per Gleeson CJ, 202 [41]–[42] per Gaudron J, 236 [149]–[151] per McHugh J, 259 [216] per Gummow J, 289 [296] per Kirby J and 328 [416] per Callinan J; [1999] HCA 36. See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 577 [84] per McHugh J, 631–632 [254] per Kirby J and 664 [321] per Callinan J.]. A focus on vulnerability may in part explain the decision in Crimmins v Stevedoring Industry Finance Committee [(1999) 200 CLR 1 at 24–25 [43]–[44] per Gaudron J, 40–41 [100] per McHugh J, 85 [233] per Kirby J.]. It has not been universally accepted as a useful analytical tool [Brodie v Singleton Shire Council (2001) 206 CLR 512 at 627 [308] per Hayne J.]. In Graham Barclay Oysters Pty Ltd v Ryan, Gummow and Hayne JJ treated the degree of a plaintiff's vulnerability as part only of an evaluation as to whether a relationship may be seen to exist between a statutory authority and the class of persons in question [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 597–598 [149].]. Establishing the existence of a relationship between a plaintiff and a public authority has the advantage of coherence with the exceptions, already recognised by the common law, to the general rule that there is no duty of affirmative action.

134 Reference was made in the judgment of Warren CJ in the Court of Appeal to a class of persons, which included the plaintiff's husband, who might be described as "especially vulnerable" [Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936 at 61,309 [64].]. But her Honour did not connect that vulnerability to a concept such as reliance or to the existence of a relationship. The point made by her Honour was that the Act had a specific class in contemplation as the object of the power provided for in s 10, which is an exercise in statutory interpretation.

135 A relationship might be seen to arise when an authority has commenced exercising its powers towards a class of individuals. In Pyrenees Shire Council v Day [(1998) 192 CLR 330.] McHugh J referred to the Council's "entry into the field of inspection" as connected with the reliance of persons upon the Council to protect them from danger [Pyrenees Shire Council v Day (1998) 192 CLR 330 at 372 [115].]. Warren CJ referred to the police officers in this case as having "entered the field" [Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936 at 61,305 [44].]. This overlooks the fact that the allegation and the evidence in this case were that the power in question was not used at all.

136 The measure of control which may be provided by a statute, with respect to the safety of persons or property, has been considered to be indicative of a duty of care [Pyrenees Shire Council v Day (1998) 192 CLR 330 at 389 [168] per Gummow J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 61 [166] per Gummow J.]. It was influential to the reasoning of both Warren CJ and Maxwell P in the Court of Appeal. Maxwell P in particular emphasised that the police officers had legal authority to exercise control over the risk that the plaintiff's husband might commit suicide and could do that which no other person could, without exposure to civil liability, namely apprehend a person, using such force as was necessary [Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936 at 61,315 [103].].

137 In Pyrenees Shire Council v Day [(1998) 192 CLR 330.] Gummow J considered that the measure of control which the Council had with respect to the prevention of fire, and which included its knowledge of the risk to the plaintiff's property, was the touchstone of its liability [Pyrenees Shire Council v Day (1998) 192 CLR 330 at 389 [168].]. In Brodie v Singleton Shire Council [(2001) 206 CLR 512.] it was said that, whatever be the significance now of the distinction between misfeasance and non-feasance, powers may give a public authority such a significant and special measure of control regarding the safety of persons as to impose a duty on the authority to exercise them [Brodie v Singleton Shire Council (2001) 206 CLR 512 at 559 [102] per Gaudron, McHugh and Gummow JJ.]. The importance of control as a basis for the existence of a duty of care was adverted to by Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [(2002) 211 CLR 540 at 558 [20].] and was referred to by Gummow and Hayne JJ as a factor of fundamental importance in discerning a duty of care on the part of a public authority [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 598 [150].].

138 Questions about the degree of a public authority's control over the risks to which a plaintiff was exposed will usually be answered by reference to the statute providing for those measures. Where a statute provides significant and special measures, which may be seen to be directed towards the risk of harm to a class of persons or property, attention is directed to the purpose for which the measures have been provided. If part of the rationale for excepting a public authority from the general rule of the common law, that no affirmative action is required, is the availability of statutory powers, their purpose must necessarily be considered. In the present case the majority in the Court of Appeal clearly considered it to be a matter of importance. The issue, as stated by Warren CJ, was whether a duty of care exists to exercise the statutory power for the purpose of protecting those whom the Act seeks to protect [Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936 at 61,305 [39].]. Maxwell P described the Act as one which contained health and safety powers to safeguard mentally ill people against the gravest of risks [Kirkland-Veenstra v Stuart (2008) Aust Torts Reports 81-936 at 61,317 [115].].

139 The evident purpose of statutory provisions, which might be utilised to prevent or minimise harm, has been identified as relevant to the existence of a duty of care in cases in this Court. The powers given to the Council in Pyrenees Shire Council v Day were considered by Gummow J to have been provided to further the legislative purpose of fire prevention [Pyrenees Shire Council v Day (1998) 192 CLR 330 at 391 [175].]. In Crimmins v Stevedoring Industry Finance Committee and again in Graham Barclay Oysters Pty Ltd v Ryan, McHugh J observed that some powers are clearly enough conferred because the legislature intends that the power will be exercised, in appropriate circumstances, to protect the specific class of persons or property [Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 40 [99]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 576 [82].]. His Honour considered that the judgment of Lord Hoffmann in Stovin v Wise [[1996] AC 923.] should be understood in this way [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 576 [82].].

52 Section 15A is a statutory provision with the underpinning purpose of ensuring fair trials. Adherence to the duty also helps to ensure that criminal charges are not pursued by the DPP against defendants where police officers have information which shows that they have not committed a criminal offence. The section may thus be regarded as a provision intended to prevent or minimise harm to people who are not given a fair trial, if information obtained by police officers during an investigation, were not disclosed to the DPP, or who might otherwise be wrongly prosecuted for crimes which they have not committed, because relevant exculpatory material is kept from the DPP.

53 Such a view of the section plainly lends support to the plaintiff’s claim that the Parliament intended to permit a civil action in relation to breach of s 15A. In Pyrenees Shire Council v Day (1998) 192 CLR 330, Brennan CJ referred, at 341, to what Kitto J had observed in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405:

[15] In Sutherland Shire Council v Heyman , (1985) 157 CLR 424 at 482; 60 ALR 1 at 44, I adopted a passage from the judgment of Kitto J in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 in holding that, before a right of action in damages for breach of statutory duty arises, “the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed”. Kitto J said:

The intention that such a private right shall exist is not … conjured up by judges to give effect to their own ideas of policy and then “imputed” to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.

54 Brennan CJ went on to say at 347:

[24] Thus a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy. Where a purpose for which a power is conferred is the protection of the person or property of a class of individuals and the circumstances are such that the repository of the power is under a public law duty to exercise the power, the duty is, or in relevant respects is analogous to, a statutory duty imposed for the benefit of a class, breach of which gives rise to an action for damages by a member of the class who suffers loss in consequence of a failure to discharge the duty. The general principles of public law establish the existence of the statutory duty to exercise the power and the statute prescribes the class of individuals for whose benefit the power is to be exercised.

[25] Where the power is a power to control “conduct or activities which may foreseeably give rise to a risk of harm to an individual” (to use a criterion stated by McHugh JA in Parramatta City Council v Lutz ) (1988) 12 NSWLR 293 at 328 and the power is conferred for the purpose of avoiding such a risk, the awarding of compensation for loss caused by a failure to exercise the power when there is a duty to do so is in accordance with the policy of the statute. An individual who is among the class whose interests are intended to be protected by exercise of the power has both locus standi to seek a public law remedy Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 ; 36 ALR 425 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 557-8 ; 129 ALR 191 and a right to compensation for damage suffered as the result of any breach of the duty to exercise the power in protection of that individual's person or property. It was on the basis of a public authority's breach of its statutory duty properly to control a scenic reserve that this court held in Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 120, 124, 134 that a visitor to the reserve was entitled to damages for personal injury when struck by the falling of a dead tree.

55 Given this approach to the question of whether a statutory duty may give rise to a private cause of action, in the face of the provisions made in s 15A, I am unable to reach the conclusion that the defendant has established that the General Steel test which it must meet, has been satisfied. The duty imposed on police officers by the section, is arguably directed to ensuring that the harm which flows from an unfair trial, or a prosecution which is not maintainable, is avoided. That the Parliament intended that the duty imposed by the section would not give rise to any civil obligations if they are breached, has not been clearly established.

56 It has also not been shown that the plaintiff’s case in negligence is untenable. In O'Connor, Dixon J observed at 477:

The cause of action for breach of statutory duty is founded upon cl 31 (b) of the regulations contained in the second schedule to the Scaffolding and Lifts Act 1912 (NSW). That clause prescribes that safety gear must be provided for all lifts, excepting direct acting lifts and service lifts in which no person travels. It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of that clause. Such a person may, of course, maintain an action of negligence, and rely upon the failure to comply with the statutory regulations as evidence of negligence. But it is a different question whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct, and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislation has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy.

57 In Tame v State of New South Wales (2002) 211 CLR 317, Gleeson CJ discussed the question of duty, in a case where damage was claimed to have flowed from a police officer’s carelessness, in this way at 330:

[8] The concepts of care and carelessness themselves require closer definition. The police officer in the case of Mrs Tame made a mistake. In that sense, he was careless. He made a slip; he noticed the error within a fairly short time, and corrected it. His error was the consequence of a lack of care. However, in the context of the law of negligence, carelessness involves a failure to conform to a legal obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned. A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages?

[9] Lord Atkin, in Donoghue v Stevenson [1932] AC 562 at 580, spoke of the effect of acts or omissions on "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care.

[10] In the same case, Lord Macmillan said [Donoghue [1932] AC 562 at 618-619.] :

"The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What, then, are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other."

58 The plaintiff here seeks to argue that in the circumstances in which the s 15A duty was imposed on the investigating police officer, such a duty arose. I am not able to be satisfied that the plaintiff has shown that this is an entirely hopeless claim. In Tame there was no question that the police officer who had there clearly made a mistake or been careless, had also failed to comply with any legal obligation. This is not such a situation. While here, too, a mistake or carelessness is relied on, that occurred in the context of the duty which s 15A imposes. It is in the face of that duty, that the question of whether a common law duty was owed to the plaintiff arises to be considered.

59 While various arguments as to legal coherence were also advanced, it is not apparent that they are such that it might be justly concluded at this stage, that the plaintiff’s case is hopeless, as the provisions of the Civil Procedure Act 2005, which must be observed when applications such as this are dealt with, require. (See ss 56, 57 and 59).

60 While the parties' submissions concentrated upon the claim brought under s 15A, the plaintiff also relies on alleged breaches of certain other provisions of the Police Act, which require that before criminal charges are brought against a police officer, a particular authority be obtained and that specified notices be given to the Ombudsman. The causes of action based on these provisions are more difficult to see, especially given the document tendered by the defendant, which suggests that the necessary authority was obtained. If that be accepted, no doubt this aspect of the plaintiff’s case will fall away. The Limitation Act argument was also not explored, no doubt because it depends on the provisions of s 50D, as well as s 50C. Section 50D is concerned with the matter of the date on which a cause of action is discoverable. The meaning of these provisions was recently considered by the Court of Appeal in Baker-Morrison v State of New South Wales [2009] NSWCA 35. Given what is there discussed and the submissions here advanced for the plaintiff, I am unable to come to the view that the plaintiff has satisfied the General Steel test, in relation to this aspect of its case.

61 In the circumstances, I am satisfied that the defendant has not met the onus which falls upon it, to show that the plaintiff's case is so untenable that it cannot possibly succeed. Accordingly, the orders sought in the motion must be refused.

Orders

62 For the reasons given, the defendant’s motion is dismissed. The usual order would be that the defendant must bear the plaintiff’s costs of the motion, as agreed or assessed. If there is any disagreement as to costs, the parties should approach within 7 days.

**********