Holloway v State of Tasmania

[2006] TASSC 60

[2006] TASSC 60

CITATION:            Holloway v State of Tasmania [2006] TASSC 60

PARTIES:  HOLLOWAY, Patrick Gerard
  HOLLOWAY, Suzzette
  v

STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 65/2005
DELIVERED ON:  23 August 2006
DELIVERED AT:  Hobart
HEARING DATE:  23 August 2006
JUDGMENT OF:  Crawford, Blow and Tennent JJ

CATCHWORDS:

Police – Actions for wrongful arrest, trespass and other wrongs – Liability of Crown or other employer – Act or omission in good faith – Misfeasance of public office.

Police Regulation Act 1898 (Tas), s52.
Enever v R (1906) 3 CLR 969, followed.
Aust Dig Police [21]

Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Police officers – Investigation of complaints against police – Procedural fairness.

Spaulding v Law Society of Tasmania [2004] TASSC 1; Mentyn v Law Society of Tasmania (No 2) [2004] TASSC 127; Trustrum v Law Society of Tasmania [2005] TASSC 20, approved.
Aust Dig Torts [41]

REPRESENTATION:

Counsel:
           Appellants:  In Person
           Respondent:  P Turner
Solicitors:
           Appellants:  In Person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 60
Number of paragraphs:  9

Serial No 60/2006
File No FCA 65/2005

PATRICK GERARD HOLLOWAY and SUZZETTE HOLLOWAY
v STATE OF TASMANIA

REASONS FOR JUDGMENT  FULL COURT

CRAWFORD J
BLOW J
TENNENT J
23 August 2006

Order of the Court

Appeal dismissed.

Serial No 60/2006
File No FCA 65/2005

PATRICK GERARD HOLLOWAY and SUZZETTE HOLLOWAY
v STATE OF TASMANIA

REASONS FOR JUDGMENT  FULL COURT

CRAWFORD J
23 August 2006

1. I agree with the reasons for judgment of Blow J.

   File No FCA 65/2005

PATRICK GERARD HOLLOWAY and SUZZETTE HOLLOWAY
v STATE OF TASMANIA

REASONS FOR JUDGMENT  FULL COURT

BLOW J
23 August 2006

(At the invitation of Crawford J, Blow J delivered the first judgment.)

1. This appeal concerns an order dismissing an action brought by the appellants in which they claimed damages from the respondent.  The appellants' contentions in that action were essentially as follows:

·     They had made a number of complaints about police officers.

·     They had asked the internal investigations unit of the Tasmania Police to review all their complaints.

·     The Commissioner of Police had failed to investigate their complaints properly.

·     The Commissioner failed to afford them procedural fairness.

·     By such failures, the Commissioner had committed the tort of misfeasance of public office.

·     They had suffered damage as a result of the Commissioner's tort, and as a result of the lack of procedural fairness.

·     The State of Tasmania was liable for the torts of the Commissioner, and therefore liable to pay them damages.

1. The State applied for their statement of claim to be struck out, and for the action to be dismissed.  The learned primary judge came to the conclusion that the appellants had no prospect of success in their action, and dismissed it.  He published detailed reasons for his decision.  The appellants contend that he made a number of errors, that the action should not have been dismissed, and that they should have been allowed to file and serve an amended statement of claim.

1. At all material times, the Police Regulation Act 1898, s52, was in force.  It provided as follows:

"(1)   A police officer shall not incur any civil liability for an act or omission done or made in good faith in the exercise or discharge, or purported exercise or discharge, of any powers, functions, duties, or responsibilities conferred or imposed upon him by any provision of this or any other Act (whenever enacted) or by law.

(2)    A liability that would, but for subsection (1), lie against a police officer shall lie against the Crown."

1. But for that section, the State could not be liable for any tort committed by a police officer: Enever v R (1906) 3 CLR 969. As a result of the enactment of that section, it became possible for the State to be liable for a tort committed by a police officer, but only in respect of "an act or omission done or made in good faith". But any act or omission by which a police officer commits the tort of misfeasance of public office is inconsistent with "good faith": Northern Territory of Australia v Mengel (1996) 185 CLR 307 at 357. Thus, if the Commissioner of Police did commit that tort, the State cannot be liable in respect of it.

1. No other cause of action known to the law was pleaded in the statement of claim or referred to in the endorsement of claim contained in the writ.  The appellants alleged that the Commissioner had not investigated their complaints properly.  However the failure of a public authority to investigate a complaint properly, by itself, does not give rise to a private cause of action for damages: Spaulding v Law Society of Tasmania [2004] TASSC 1; Mentyn v Law Society of Tasmania (No 2) [2004] TASSC 127; Trustrum v Law Society of Tasmania [2005] TASSC 20.

1. There is nothing in the material that was before the learned primary judge, nor in the material before us, that would suggest that the appellants' claim, if repleaded, might have any prospect of success.  In my view the learned primary judge was right in all that he said.  There is no need to repeat his analysis and observations.  The order that he made was the only appropriate one. Of course this appeal concerns only the question whether the appellants could succeed in claiming damages from the State.  It does not concern the question whether they may or may not have a right of action for damages against one or more police officers.

1. I would dismiss this appeal.

   File No FCA 65/2005

PATRICK GERARD HOLLOWAY and SUZZETTE HOLLOWAY
v STATE OF TASMANIA

REASONS FOR JUDGMENT  FULL COURT

TENNENT J
23 August 2006

1. I agree with the reasons for judgment of Blow J and would dismiss the appeal.