Heptonstall v Gaskin and 2 Ors

[2003] NSWSC 693

CITATION:

Heptonstall v Gaskin & 2 Ors [2003] NSWSC 693 revised - 8/08/2003

HEARING DATE(S):

22 July 2003

JUDGMENT DATE:

1 August 2003

JURISDICTION:

Common Law

JUDGMENT OF:

Master Harrison

DECISION:

(1) Paragraphs 35 to 37 of the ASC are struck out; (2) In relation to paragraph 2(a), (b) and (c) of the plaintiff's notice of motion filed 26 February 2003, the third defendant is to comply with Part 23(6)(b) of the SCR giving the number of documents and reference to period within 14 days; (3) The balance of the plaintiff's notice of motion filed 26 February 2003 is dismissed; (4) The plaintiff is to pay the third defendant's costs of both motions

CATCHWORDS:

Strike out paragraphs ASC - whether duty of care owed, investigations of misconduct by teacher - discovery

LEGISLATION CITED:

Evidence At - 22 118 & 199
Supreme Court Rules - Part 15 r 26
Teaching Services Act 1980 - s 83(f)

CASES CITED:

Air Services Australia v Zarb (NSWCA unreported, 26 August 1998)
Australian Competition and Consumer Commissiomn v Australian Safeway Stores Pty Ltd & Ors (1998) 81 FCR 526
Crimmins v Stevedoring Industry Finance Committee [1999] 1200 CLR 1
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Elguzouli-Daf v Commissioner of Police of the Metropolis; McBrearty v Ministry of Defence [1995] QB 335; [1995] 1 All ER 833
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238
Mulley v Manifold (1959) 103 CLR 341
Quintano & Ors v The State of New South Wales [2002] NSWSC 766
Spellson v George [1991] 26 NSWLR 666
State of New South Wales v Paige [2002] NSWCA 235
Sullivan v Moody (2001) 183 ALR 404; (2001) 75 ALJR 1570
Webster & Anor v Lampard (1993) 177 CLR 598
Wilson v State of New South Wales (2001) 53 NSWLR 407

PARTIES :

Gregory Heptonstall
(Plaintiff)

Brian Gaskin
(First Defendant)

Sharlene Hutcherson
(Second Defendant)

State of New South Wales
(Third Defendant)

FILE NUMBER(S):

SC 20239/2000

COUNSEL:

Mr D T Kennedy SC with
Mr M J Walsh
(Plaintiff)

Mr P Menzies QC with
Mr R H Weinstein
(Third Defendant)

SOLICITORS:

Mrs J Macara of
MacMahon Associates
(Plaintiff)

Ms G Fuller
Crown Solicitor's Office
(Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 1 AUGUST 2003

20239/2000 - GREGORY HEPTONSTALL v
BRIAN GASKIN & 2 ORS
JUDGMENT (Strike out paragraphs ASC – whether
duty of care owed, investigations of misconduct by teacher; discovery)

1 MASTER: There are two motions before the court. Firstly, by notice of motion filed 24 February 2003 the third defendant seeks an order that paragraphs 35, 36 and 37 of the amended statement of claim (ASC) filed 15 August 2000 be struck out pursuant to Part 15 r 26 of the Supreme Court Rules (SCR). The third defendant relied on the affidavit of Gillian Fuller sworn 20 February 2003. Secondly, by notice of motion filed 26 February 2003 the plaintiff seeks discovery of documents of the first and second defendant; and that documents listed by the third defendant as privileged ought to be discovered.

2 The plaintiff is Gregory Heptonstall. The first defendant is Brian Gaskin. The second defendant is Sharlene Hutcherson. The first and second defendants were both Detective Senior Constables of police in the New South Wales Police Service who conducted the investigations. The third defendant is the State of New South Wales.

3 I shall deal firstly with the summary judgment application and then the discovery motion.

The law on summary judgment

4 Part 15 r 26 provides:

“(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”

5 In a Court of Appeal decision Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb.

6 In General Steel Barwick CJ, who heard the application alone stated:

“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

7 Barwick CJ also said:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that
it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”

8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous test stating, at 602:

“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’

9 According to Rolfe AJA in Zarb:

“The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”

10 The plaintiff’s counsel also drew the court’s attention to Spellson v George [1991] 26 NSWLR 666 at 681 where Young AJA stated that it is inherently unsuitable to deal with a case by summary judgment where the result must depend on all the facts and circumstances.

The pleadings

11 A brief summary of the allegations in the amended statement of claim (ASC) is as follows. The plaintiff was appointed to Helensburg Public School as a primary school teacher in 1990. In 1995 he was appointed as the school’s physical education and personal health and development supervisor.

12 Between 28 May and 2 June 1997, statements were taken from two students. On 6 June 1997, as a result of the statements, the first and second defendants arrested and detained the plaintiff at Bulli Police station. He was subsequently charged with six counts of aggravated acts of indecency upon two persons under the age of sixteen and one count of common assault. In 1997, the plaintiff appeared at Wollongong Local Court on four occasions on 24 June, 29 July, 19 August and 11 December to answer the charges. On 11 December 1997, the charges were withdrawn and dismissed.

13 On 11 December 1997, the plaintiff was advised by the assistant director general of the Department of Education that the allegations would continue to be investigated by that department’s case management unit. On 29 June 1998, the plaintiff was informed by letter by the Assistant Director General of Education that he had been charged within the meaning of s 83(f) of the Teaching Services Act 1980 (TSA) with improper conduct relating to the same allegations that had been withdrawn and dismissed in the criminal proceedings and in respect of two other matters. On 29 July 1999, Dr Bryan Cowling, the prescribed officer, found the allegations not to be proven and they were dismissed.

14 The plaintiff alleges that the first and second defendants caused him to be detained, fingerprinted and photographed and thereby assaulted and battered and falsely imprisoned. The plaintiff pleads further causes of action, namely misfeasance in his/her public office as police officers in arresting and/or detaining and/or charging and/or prosecuting the plaintiff; that the first defendant and officers of the office of the Director of Public Prosecutions maliciously without reasonable and probable cause charged and/or prosecuted him; and that the third defendant breached its contract of employment with him in relation to the investigation and disciplinary proceedings.

15 The plaintiff submitted that as a result of the criminal charges, departmental investigation and departmental charges he was prohibited from being engaged in his employment as a school teacher and as supervisor in the ski training program with New South Wales Sport & Recreation Winter Academy of Sport. On 29 October 1999, the plaintiff was medically retired from his employment. He claims he is permanently incapacitated as a school teacher and has and will continue to suffer a substantial reduced capacity for employment on the open labour market and seeks damages including aggravated and exemplary damages, general damages and damages for economic loss.

16 It is only the claim pleaded in negligence which appears below that the defendants’ seek to have dismissed on a summary basis.

17 Paragraphs 35 to 37 of the ASC plead:

“35. Further and/or in the alternative, the plaintiff says that the Department of Education, by its servants and agents who investigated and conducted the disciplinary procedures were negligent and as a result of which the plaintiff has suffered injury, loss and damage.
36. At all material times the said Pat Clear, Glenys Parry Blackadder, the Assistant Director General of Education and the prescribed officer and other servants and agents involved in the investigation and charging of the plaintiff were servants and agents of the Crown in right of the State of New South Wales.
37. PARTICULARS OF NEGLIGENCE OF THE DEPARTMENT OF EDUCATION, ITS SERVANTS OR AGENTS


(i) …

(ii) Failed to investigate the allegations diligently and within a reasonable time.

(iii) Undue delay in the investigation of the allegations and the bringing and prosecuting of the departmental charges.

(iv) Caused undue delay in making findings in respect of the allegations.

(v) Failed to obtain statements from relevant witnesses prior to recommending that the plaintiff be charged with disciplinary offences.

(vi) Failed to have regard to the information obtained by the Police as result of which the criminal charges were withdrawn and dismissed which information they were aware of or ought to have been aware.

(vii) Failed to take any or any reasonable steps to investigate the allegations and gather together all the relevant material prior to recommending that the plaintiff be charged with the disciplinary offences.

(vii) Failure on the part of the Case Management Unit investigators to bring to the attention of those responsible within the Department of Education responsible for the charging and bringing of disciplinary proceedings against the plaintiff all of relevant information within their possession, such information being consistent with the plaintiff's innocence.

(ix) Failure to diligently and fairly investigate all of the relevant information of which the investigators knew or ought to have known before recommending that disciplinary charges be laid against the plaintiff.

(x) Failure of the Case Management Unit to supply to the prescribed officer relevant statements namely, the statements of Carina Wilkinson, Diane Fardy, Aaron Sorenson and Paula De Carle which statements were exculpatory of the plaintiff.

(xi) Supplying the said statements referred to in (x) above only after the plaintiff's solicitors had brought to the attention of the prescribed officer that the plaintiff believed that relevant statements had not been provided by the Department to the prescribed officer.

(xii) Failure of the Case Management Unit to provide to the prescribed officer with relevant documentary material relating to the program and teaching of physical education in schools in 1997 and only after the prescribed officer had been advised by the solicitors for the plaintiff that such material existed.

(xiii) The failure of the Case Management Unit to provide to the prescribed officer the letter of Paul X Whelan dated 15 May 1999, the letter of Beverley Clarke dated 24 February 1998, the letter of Cathy Deem dated 24 February 1998, a record of interview of Carolyn Bamford dated 10 March 1998 and a final interview with Corina Wilkinson dated 10 March 1998 until after the plaintiff's solicitors had advised the prescribed officer that they believed that there was other relevant material within the possession of the Department of which had not been provided to the prescribed officer and only after the New South Wales Teachers Federation lodged a dispute notification with the Industrial Relations Commission of New South Wales on 22 April 1999 in relation to the matter.

(xiv) The failure on the part of those officers of the Department responsible for investigating the allegations against the plaintiff including, but not limited to, Pat Clear and Glenys Parry Blackadder, to carry out their investigations fairly and without bias.

(xv) That the said investigators had prejudged the allegations and failed to provide to the persons responsible for instituting the charges against the plaintiff and dealing with the charges against the plaintiff with all the relevant material in their possession much of which was exculpatory of the plaintiff.

(xvi) Failure to institute, maintain and supervise a system of investigation and charging of members of the teaching profession which was fair and without bias.

(xvii) Failure to lay down any or any adequate guidelines for the fair and objective investigation of allegations against members of the teaching profession any or any adequate guidelines in relation to the circumstances in which charges should be made and prosecuted.

(xviii) Failure to institute, maintain and supervise any system or any adequate system to ensure that relevant officers within the Department of Education responsible for charging teachers with disciplinary proceedings and dealing with disciplinary proceedings were supplied with all relevant information in relation to the allegations made against a member of the teaching profession.

(xix) Failure to institute, maintain and supervise any system of investigation and charging of members of the teaching profession that was fair, objective and without bias.

(xx) Failure to heed or investigate or adequately investigate all relevant information
supplied to them in relation to the allegations and departmental charges.

(xxi) Failure to institute procedures that would have permitted the plaintiff to make relevant enquiry of members of the Helensburgh Public School community with a view to exculpating himself in respect of the criminal charges, the departmental investigation and departmental charges.

(xxii) Forbidding the plaintiff from making relevant enquiry of members of the Helensburgh Public School community in relation to criminal charges, the departmental enquiry the and departmental charges.”

18 Thus these particulars of negligence focus upon the procedure adopted for the investigation of allegations made against the plaintiff and the disciplinary procedures which took place.

19 The defendants seek to have the proceedings dismissed or the amended statement of claim struck out on the basis that there is no cause of action in negligence available in respect of these investigations because there is no duty of care owed to the plaintiff by the defendant. The plaintiff construed his case somewhat differently by stressing that the first defendant was not a third party but is in an employee/employer relationship with the third defendant. The third defendant as an employer owed the duty of care to take reasonable steps to prevent psychological harm to him. The plaintiff submitted that an employer has a further obligation not to subject the employee to an unnecessary risk of injury of either a physical or psychological nature during any investigations or disciplinary process. The plaintiff’s counsel added that the employer’s duty extends to ensuring that it provide a safe system of work.

20 The parties referred to the decisions of Sullivan v Moody (2001) 183 ALR 404’ (2001) 75 ALJR 1570; Wilson v State of New South Wales (2001) 53 NSWLR and The State of New South Wales v Paige [2002] NSWCA 235. There is a line of authority that establishes that there is no general duty of care owed by police officer to third parties when they are conducting investigations.

21 The starting point, I think is Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 where it was held that there was no general duty of care owed by the police to individual members of the public to identify and apprehend a criminal. The House of Lords also held that as a matter of public policy the police were immune from actions of negligence in respect of their activities in the investigation and suppression of crime. Lord Keith of Kinkel observed, at 63:

“Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded.”

22 His Lordship continued:

“The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called into question, yet elaborate investigation of the facts might be necessary to ascertain whether this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and re-traversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.”

23 In Elguzouli-Daf v Commissioner of Police of the Metropolis; McBrearty v Ministry of Defence [1995] QB 335; [1995] 1 All ER 833, the English Court of Appeal applied the reasoning articulated in Hill and decided by way of analogy that the Crown Prosecution Service did not owe a general duty of care in the conduct of its prosecution of a defendant. In any event, the Crown Prosecution Service was also immune from actions in negligence by reason of public policy. In both Hill and Elguzouli-Daf the proceedings were summarily dismissed.

24 Wilson involved a striking out application on a claim of negligence against the police. After consideration of the English authorities and their subsequent treatment in Australian courts, O’Keefe J concluded, at 422, that:

“an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body.”

25 The same view was held by Levine J in Quintano & Ors v The State of New South Wales [2002] NSWSC 766.

26 The decisions referred to so far are confined to the investigators being either Police or the Crown Prosecution Service. The High Court in Sullivan expanded the category of those which fell into the role of investigators when it held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. Their Honours commented, at para 53, that there were cases, such as the one before them, in which:

“to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.”

27 The High Court considered Hill, in which it was noted that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the allocation of resources. The High Court commented at, para 57, that

“to subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate.”

28 The court also stated, at para 60, that:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which the powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, 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.”

29 Like Hill and Elguzouli-Daf, Wilson and Sullivan the plaintiff’s pleading was summarily dismissed.

30 However, the plaintiff submitted that the principles enunciated above do not apply because he was not a third party but an employee. The New South Wales Court of Appeal in Paige took a different approach when it considered whether to impose a duty of care in these circumstances by examining the issues of vulnerability and legal coherence which included vulnerability, consistency and compatibility of the proposed duty of care with a statutory scheme. The plaintiff Mr Paige, was the principal of a Sydney high school from 1992 to 1998. He was an employee of the Department of Education who was sued as the State of New South Wales. In 1992, Mr Paige received complaints from students regarding sexual misconduct of a teacher (Mr N) at the school occurring before his appointment. He notified the New South Wales Department of Education of some complaints, but dealt with the complaints by a direct approach to the teacher and arranged to have him transferred from the school. In 1997, the Director-General of the Department issued a statement requesting a re-notification of sexual misconduct cases that had not been adequately investigated. The respondent re-notified the complaints and notified some other complaints for the first time.

31 Mr Paige’s conduct was investigated under Division 6 of Part 4 of the TSA. He was subsequently charged with a breach of his duties for non-compliance with Departmental procedures in the way he had handled the complaints. The charges were determined, pursuant to Clause 15 of the Teaching Services (Education Teaching Service) Regulation 1994, on written submissions only.

32 In October 1997, the respondent submitted, and subsequently withdrew, a notice of retirement. The prescribed officer found him guilty of the charges and the Director-General purported to accept the original notice of retirement. The respondent concluded his service on 2 March 1998. The plaintiff suffered psychiatric harm and lost income. The trial judge held that the Department had breached its duty of care it owed to Mr Paige. His Honour also found that the Department had not effectively terminated the respondent's contract of employment. The trial judge awarded damages in both tort and contract. This decision was reversed on appeal.

33 Paige differs from this case before this court. Both plaintiffs were employed by the defendant. The plaintiff in the case before this Court was the alleged perpetrator of the alleged impropriety in relation to students, whereas in Paige, it was the principal’s failure to follow proper procedure in relation to allegations of improper conduct of a teacher, Mr N that were the subject of the departmental charges. Both were the subject of disciplinary procedures and under the same statutory scheme, namely the provision s 83 of the TSA which defines what constitutes a breach of discipline. Section 83(f) refers to disgraceful or improper conduct. The procedure for dealing with breaches of discipline is set out in s 84. In the case before this Court the disciplinary proceedings against the plaintiff were withdrawn, whereas in Paige they were not. However, both Paige and the plaintiff in this case are employees who have pleaded a cause of action against their employer.

34 As I understand it, the plaintiff’s counsel referred to a passage at paragraph 78 of the judgment where the Chief Justice stated that the body of case law with respect to a: “safe system of work” had been, so far as he was aware, exclusively concerned with the conduct of tasks for which an employee was engaged and submitted that the plaintiff was performing tasks for which he was engaged.

35 The plaintiff’s counsel highlighted paragraphs 91, 99, 101, 102 and 115 of the Chief Justice’s judgment in Paige (on the duty of care issue Mason P and Giles JA agreed). These paragraphs state:

“91 The determination of whether a common law duty of care exists with respect to the exercise of statutory powers is not the subject of authoritative guidance from the High Court. A number of different approaches is discernible in recent authority. (See Pyrenees Shire Council v Day (1998) 192 CLR 330; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 75 ALJR 992.) The joint judgment in Sullivan v Moody does not reconcile the different approaches, save by rejecting the three stage test previously applied by Kirby J...
99 As noted above Sullivan v Moody directs attention to the compatibility of a duty of care with other duties. The particular aspect of the statutory context to which their Honours gave emphasis was the express statutory provision that the interests of a child would be the paramount consideration. In the present proceedings, the Appellant did not draw the Court's attention to any particular statutory provision relating to the provision of education which was similar to that considered in Sullivan v Moody . The submissions in this Court were restricted to the terms of the Teaching Services Act itself...
101 Within the confines of the limited range of statutory provisions upon which the Appellant relied in submissions in this case, the conflict of responsibilities is not as stark as that found in the legislation under consideration in Sullivan v Moody . Nevertheless, there is at least a level of tension, and perhaps of conflict, between the duty imposed upon the Director-General and his or her officers, a duty owed to both the public at large and to the particular school community, to ensure the efficient and effective operation of the State education system, on the one hand, and a duty to provide a "safe" disciplinary process with respect to such matters, on the other hand.
102 Although the Court's attention was not drawn to any specific duty, it can be readily accepted that a duty exists to have proper systems in place for investigating improper handling of allegations of sexual misconduct by teachers. The Director-General's statement of 18 February 1999 commenced with a reference to evidence before the Royal Commission into the NSW Police Service and said:

"Evidence given by teachers and other departmental officers revealed a totally unacceptable response to allegations of professional misconduct and criminal behaviour by several teachers in a number of schools in one of the former DSE regions."

115 As a general rule, in my opinion, it is undesirable to inhibit an investigation into the exercise of a statutory power which protects public interests by imposing the chilling effect of a risk of civil liability. As Lord Keith of Kinkel said with reference to police investigation of crime:

"In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind."
( Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63)”

36 The conclusions of the Chief Justice in relation to whether the State of New South Wales owed a duty of care to Mr Paige appear at paragraphs 178 to 182. They state:

“178 One matter that operates in favour of the recognition of the duty in the present case is the fact that it focuses on a relationship, i.e. that of employer and employee, in which a wide range of duties - indeed non-delegable duties - already exists. The authorities suggest that the development of the law in this respect should be incremental and proceed by analogy with established categories, e.g. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481 per Brennan J.

179 Whether something should be described as "incremental" is a matter on which reasonable minds may differ. It may be appropriate to describe the addition of a new kind of duty into a relationship replete with such duties, as "incremental" in the relevant sense. The fact that so wide a range of duties is already recognised in the particular relationship is a factor in favour of recognising a new category. It does not, however, appear to me that the present context involves any analogy with an established category.

180 Another factor which is of significance is the vulnerability of the persons who may be subjected to negligent conduct. (See the authorities collected in Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 at [29]-[43].) In the present case, this factor would favour recognition of a duty. With respect to the disciplinary process, a person whose conduct is being investigated is not able to protect himself or herself, other than by way of protest and proceedings for judicial review, if the investigators fail to observe proper procedures.

181 Finally, the element of "control" has been emphasised in a number of judgments. That element is satisfied here, in the sense that the Appellant, by its officers, was in control of the disciplinary process.

182 Nevertheless, the issues of coherence with the law of employment and administrative law, which I have discussed above, together with the element of incompatibility of duties, are so significant as to outweigh these considerations. In my opinion, there was no duty of care of the character found by his Honour.”

37 The plaintiff’s counsel submitted that in the present case before me the plaintiff does not have any redress by way of administrative law and thus this case differs from Paige so the test laid down by McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] 200 CLR 1 at 39 is the correct approach that should be adopted. In Crimmins, McHugh J stated:

“In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:

1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

5. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.

6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

38 The plaintiff submitted that it should be adopted and if it is applied to the circumstances of this case, the plaintiff would, at the very least have an arguable case. However this should also be read with the other significant passage given by McHugh J in Crimmins, at 50-51, under the heading “Other policy factors” which says:

"There are no other reasons to deny a duty of care. There are no considerations such as those that led the House of Lords to deny a duty of care in X (Minors) v Bedfordshire County Council ([1995] 2 AC 633 at 749-750 per Lord Browne-Wilkinson (Lords Jauncey of Tullichettle, Lane, Ackner and Nolan agreeing) - cutting across of a statutory scheme, the "delicacy" of the relationship between the parties or the fact that the officers of the Authority might adopt a "more cautious and defensive approach to their duties." Quite the opposite - in this case a recognition of a duty would likely have made the Authority more vigilant in its role. Nor do I think that the position of the Port Inspectors is analogous to the position of police officers ( Hill v Chief Constable of West Yorkshire [1989] AC 53; Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335), given that the Authority was charged with responsibility for the safety of a specific class - the waterside workers under its direction".

39 The principles laid down by McHugh J distinguish the line of authority established in Hill and Elguzouli-Daf.

40 Critically, for the plaintiff in the case before me, there is a tension and perhaps conflict between the duty imposed and his office, a duty owed to the public at large and to the particular school community to ensure the efficient and effective operation of the State education system on the one hand and a duty to provide “safe” disciplinary process on the other hand. This matter falls within the parameters set out in paragraph 182 in Paige. It is inevitable that the plaintiff’s claim at paragraph 35 and 37 inclusive of the ASC is doomed to failure. Those paragraphs do not disclose a duty of care. They do not disclose a reasonable cause of action and should be struck out.

Discovery

41 Discovery is a procedure directed towards obtaining a proper examination and determination of the issues - not towards assisting a party upon a fishing expedition. Only documents which relate in some way to a matter in issue are discoverable, but it is sufficient if it or they would, or would lead to, a train of enquiry which would, either advance a party’s own case or damage that of his adversary (see Mulley v Manifold (1959) 103 CLR 341 at 343. The principal purpose of discovery under the current Part 23 regime is to limit unnecessary discovery and restrict the discovery process to only specified documents or classes of documents.

42 The plaintiff has sought an order that the personnel files of the first and second defendants (the investigating police officers) and their medical files be discovered. It is my view that the plaintiff in seeking these documents has embarked on a fishing expedition which is impermissible. Thus the documents referred to in paragraph 1 of the plaintiff’s motion are not discoverable. Orders were made in court in relation to paragraph 2 of the motion.

43 That leaves paragraph 3 which relates to documents over which the third defendant is asserting legal professional privilege. A folder of documents was handed up to the court. No objection was taken by the parties to the court examining them to ascertain whether they fall within the provisions ss 118 and 199 of the Evidence Act. In this regard the plaintiff’s counsel referred to Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Ors (1998) 81 FCR 526 at 545-6 where Goldberg J wrote:

“The process of investigation is logically anterior to, and a precursor to, the point at which it may be said that proceedings are prospective or reasonably anticipated. If evidence is required for proceedings it can be expected that until that evidence gathering process is well advanced, a view will not be able to be formed that proceedings are prospective or reasonably anticipated. That is a reason why it is difficult to ascribe a dominant purpose to the preparation of the anticipated proceedings before the evidence gathering process is well advanced and the evidence has been evaluated.”

44 The relevant dates to bear in mind are that the plaintiff was charged by the Police on about 6 June 1997 and these charges were dismissed on about 11 December 1997. The disciplinary charges were laid on 29 June 1998. These charges were dismissed a little over a year later namely on 29 July 1999.

45 I am satisfied that the documents in the brown folder are the subject of legal professional privilege. Except for the order made in court in relation to paragraph 2, I dismiss the balance of the plaintiff’s notice of motion.

46 Costs are discretionary. Normally costs follow the event. The third defendant was successful with the exception of one minor matter. It is my view that the plaintiff should pay the defendants’ costs as agreed or assessed.

47 The court orders:

(1) Paragraphs 35 to 37 of the ASC are struck out.

(2) In relation to paragraph 2(a), (b) and (c) of the plaintiff’s notice of motion filed 26 February 2003, the third defendant is to comply with Part 23(6)(b) SCR giving the number of documents and reference period within 14 days.

(3) The balance of the plaintiff’s notice of motion is dismissed.

(4) The plaintiff is to pay the third defendant’s costs of both motions.
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Last Modified: 08/12/2003