Horvath v State of Victoria & Ors

[2004] HCATrans 215

[2004] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M105 of 2003

B e t w e e n -

CORINNA TAMARA HORVATH

Applicant

and

STATE OF VICTORIA, IAN CHRISTENSEN, STEPHEN DAVISON, DAVID LAURENCE JENKIN AND MARC STUART SAUNDERS

Respondents

Office of the Registry
  Melbourne  No M106 of 2003

B e t w e e n -

CRAIG ANTHONY LOVE

Applicant

and

STATE OF VICTORIA, IAN CHRISTENSEN, STEPHEN DAVISON, DAVID LAURENCE JENKIN AND MARC STUART SAUNDERS

Respondents

Office of the Registry
  Melbourne  No M107 of 2003

B e t w e e n -

COLLEEN MARY KNIESE

Applicant

and

STATE OF VICTORIA, IAN CHRISTENSEN, STEPHEN DAVISON, DAVID LAURENCE JENKIN AND MARC STUART SAUNDERS

Respondents

Office of the Registry
  Melbourne  No M108 of 2003

B e t w e e n -

DAVID ALEXANDER KNIESE

Applicant

and

STATE OF VICTORIA, IAN CHRISTENSEN, STEPHEN DAVISON, DAVID LAURENCE JENKIN AND MARC STUART SAUNDERS

Respondents

Office of the Registry
  Melbourne  No M109 of 2003

B e t w e e n -

CRAIG ANTHONY LOVE

Applicant

and

STATE OF VICTORIA, STEPHEN DAVISON AND DAVID LAURENCE JENKIN

Respondents

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 2.43 PM

Copyright in the High Court of Australia

MR D.F. HORE‑LACEY, SC:   May it please the Court, I appear with MR J.P. GORTON, for the applicants in this application.  (instructed by Slater & Gordon)

MS P.M. TATE, SC, Solicitor-General for the State of Victoria:May it please the Court, I appear with my learned friend, MR P. GOLOMBEK, for the first respondent, the State of Victoria.  (instructed by the Victorian Government Solicitor)

MR M.F. WHEELAHAN:   May it please the Court, I appear for the respondent, Christensen, in each application.  (instructed by Kenna Croxford & Co)

MR A.N. MURDOCH:   May it please the Court, I appear for the respondents, Davison and Saunders, in this application.  (instructed by Kenna Croxford & Co)

MR MURDOCH:   May I raise a preliminary query in the matter of ‑ ‑ ‑

HAYNE J:   If you come to the lectern so that you can be recorded, please, Mr Murdoch.  Is this this question about changing solicitors and going off the record?

MR MURDOCH:   Yes, indeed, going off the record.

HAYNE J:   Going off the record is I think rather more difficult than perhaps the consent order of the parties might acknowledge.  I suspect that the point is one that may not fall for determination, may it, if the applicants seek no relief against the respondent concerned.

MR MURDOCH:   That may well be the situation, your Honour, yes.

HAYNE J:   Perhaps it is something that if it needs to be dealt with for some reason, and if for some reason the solicitors do need to get off the record, I suppose it might be dealt with as a single justice matter and guess who may have the privilege of dealing with that, Mr Murdoch, but I do not think we need delay further with it here, need we?

MR MURDOCH:   May it please your Honour.

HAYNE J:   Yes, Mr Hore-Lacy?  The parties have agreed the times that it is suggested might be followed, I understand?

MR HORE‑LACEY:   Yes, we have, your Honour.

HAYNE J:   Thank you.

MR HORE‑LACEY:   If I could deal with three questions by way of supplementary submission:  first of all, the situation of Enever v The King; and secondly, section 123 of the Police Regulation Act; and third, the merits of the case.

First, in relation to Enever, the Enever issue raised itself in two senses in this case.  Your Honours will be familiar with the facts.  First of all, it was pleaded section 23 of the Crown Proceedings Act was pleaded by the plaintiffs in the statement of claim.  Whilst it is not spelt out in the defence, the defence of Enever was taken, that is, that the police officers involved were acting pursuant to an independent discretion, and consequently that was seen, pursuant to the authority of Enever and perhaps Attorney‑General v Perpetual Trustee as a complete defence.

It also raised itself in the Court of Appeal judgment because what the Court of Appeal decided was that after the police met at the rendezvous shortly away from 213 Coolart Road in Hastings that they agreed to enter the house without a warrant and effect the arrests of two people and whereas the learned trial judge had decided that negligence of Christensen, the officer in charge, and also trespass of the police was causative of injuries and damage inside the house, the Court of Appeal found that the police officers agreed to enter the house and thereafter were acting pursuant to an independent discretion, and that the torts, the damage was caused by police officers inside the house, acting pursuant to an independent discretion.

In relation to the Enever point, we would submit, your Honour, that the principle is outmoded and we need to do no more, we would submit, than refer to comments made by the Court in the case of Hollis v Vabu, including ‑ ‑ ‑

HAYNE J:   Why would we ever get to Enever until we had dealt with Police Regulation Act 123? Would not that have to be the starting point? The legislature has intervened. Would we not have to determine first the way in which section 123 operated?

MR HORE‑LACEY:   In our submission, no.  It is obviously relevant but Enever can co‑exist with section 123, as does the situation in New South Wales, under the Vicarious Liability Act, section 8, I think, which states that the Crown is liable for the torts of police officers, including torts perpetrated by way of an independent discretion.

HAYNE J:   That may present you with a still larger hurdle, namely, that the legislatures round the country have all had a go at determining what liability shall be visited on the State conduct of police officers – at least some, perhaps much, perhaps all of that legislation seems to proceed from the premise that legislative intervention is necessary because of Enever.  If the legislature has intervened in that away, again, why would we get into it?

MR HORE‑LACEY:   The legislature has not intervened, with respect, in every State, your Honour.  It is only, I think, according to the State of Victoria’s submissions, it has intervened in New South Wales and South Australia, but it has not intervened in every State.  As a matter of practice - indeed, I seem to recall at university being taught that as a matter of practice the State of Victoria did not take the point.

HAYNE J:   Those are very dangerous ‑ ‑ ‑

MR HORE‑LACEY:   Yes, it may be, your Honour, but as a matter of practice – and I think one of the cases refers to the constitutional practice of not relying upon the point, but in any event, we would say that it was this Court that introduced the notion that police officers, or at least articulated that police officers were acting pursuant to an independent discretion.

We would say that the common law has been articulated by courts, in particular the High Court in the last 100 years, and it is the High Court, which having articulated the principle, we would say it is appropriate for the High Court to, in fact, look at it again in light of criticism that has been made, fairly general criticism that has been made of the decision and its operation.

HAYNE J:   The proposition that the States have intervened was founded on what appears at 340 to 341 of the application book where reference is made to statutes of New South Wales, South Australia, Western Australia, Queensland and Tasmania.  It does seem that nationwide that the legislatures have had a go at the problem.

MR HORE‑LACEY:   It does refer at 336:

Two States have enacted legislation effectively abrogating the principle -

and it just refers to New South Wales and South Australia, the two of them, your Honour.  Could we just refer to the comments made by the Court in Hollis, of which your Honour Justice Hayne was part of the Court which stated:

The nature of employment relations has changed greatly since the age of feudal status.  This particularly is true over the course of the last century, in which not only the character of employment but also the common law of negligence developed apace.  In Darling Island Stevedoring v Lighterage Co Ltd v Long, Fullagar J expressed the view, surely correctly, that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy.

HAYNE J:   Again, let it be assumed for the purpose of debate the Court thought it appropriate to get into Enever.  The next question that would emerge is a Lepore, Samin and Rich problem, namely, torts with which we are concerned are intentional torts, for the most part, and intentional torts of which some at least, perhaps the major ones, are committed in circumstances said to warrant the award of aggravated and exemplary damages.

MR HORE‑LACEY:   Yes.

HAYNE J:   It is not exactly promising ground for vicarious responsibility after Lepore, Samin and Rich.

MR HORE‑LACEY:   That is only in relation to one, that is, Corinna Horvath, who was assaulted badly by Jenkin, one of the police defendants.  Colleen Kniese was merely detained, and hence the unlawful imprisonment, and we would say ‑ ‑ ‑

HAYNE J:   Did she not obtain the benefit of an award of aggravated or exemplary damages?

MR HORE‑LACEY:   Yes, she did, that is correct, your Honour.

HAYNE J:   I think all of the applicants may have had the benefits of such awards, may they not?

MR HORE‑LACEY:   Yes, that is correct.  If there is a mistake in relation to that, it is a mistake in relation to the award of exemplary damages not the mistake in relation to the award of damages.  Could we just say this, your Honour.  First of all, it was Christensen who decided to conduct the forced entry.  It was he who planned it, and he who supervised it.  Two aspects of negligence as far as he was concerned were, first of all, allowing Jenkin to go on the raid in the first place, and secondly, failing to supervise him, and not only failing to supervise him, failing to give him adequate instructions that he was just there to identify one of the officers.

HAYNE J:   There is a problem lurking under that not hitherto remarked on which I raise with some diffidence, but you ought to know about.  It is by no means clear to me why this was a negligence case.  Yes, the supervision may have been in a general term, careless.  The planning may have been careless.  What was the duty, duty to ensure that officers under supervision did not permit other torts?  Odd sort of duty.

MR HORE‑LACEY:   It is not necessarily duty to ensure they did not commit other torts.

HAYNE J:   What is the duty of care then, or what exactly is the duty?

MR HORE‑LACEY:   His duty as the person in charge was to adequately, so far was reasonable, to control his officers and to properly plan it.  The case of Costea v Morgan is authority for the fact that if an operation such as this is not properly planned then it is reasonably foreseeable that there will be damage caused, plus there was the action ‑ ‑ ‑

HAYNE J:   The imperial march of negligence taken to its logical extent, that there is a duty of care to ensure that no other tort is committed.  It may be where we have got to with the law of negligence, but as I say, at the moment, nobody else seems to be interested in raising it.  You had better avoid entertaining my idle speculations, Mr Hore‑Lacey, and deal with your application.

MR HORE‑LACEY:   Could I go onto the question of trespass?

HAYNE J:   Yes.

MR HORE‑LACEY:   The Court of Appeal really did not deal with the trespass case because it decided that the sole cause of the damage was the police officers acting pursuant to an independent discretion, which assumes that there is no control at all, and flies in the face of the findings and the undisputed evidence.  I might say this point was not even argued in the court below that they were acting pursuant to an independent discretion, not that that makes it wrong.

As far as the causation was concerned, if indeed the police were all acting pursuant to an independent discretion, presumably as a result of an agreement, then accordingly, there is no right of control by anybody and that is not what the situation was.  In relation to the trespass, the trespass was caused by the fact that, first of all, there was no warrant to arrest.  Second, it was contrary to section 459A of the Crimes Act.

HAYNE J:   It was not authorised under 459A.

MR HORE‑LACEY:   Yes.  That section enables a police officer to enter and search premises:

for the purpose of arresting . . . a person whom he‑

(a)      believes on reasonable grounds‑

(i)       to have committed in Victoria a serious indictable offence -

Now, the only ‑ ‑ ‑

HAYNE J:   Look, we begin from the premise, there was a trespass, there was an assault, there was a wrongful imprisonment, there was a malicious prosecution.  I understand that that is the premise for all this.  The immediate question is how much, if any, of that responsibility is to attach, not just to the perpetrator but to the State of Victoria?

MR HORE‑LACEY:   We would say that first of all it attaches to Christensen to start with, as his Honour founded, and the trespass - it was not that he did not have the belief that he had the power, it was that he did not have a reasonable belief. Now, where the Court of Appeal has gone wrong, in our submission, was to look at the overall conduct of the police in question and to decide whatever the overall conduct was, whether or not that was conduct reasonably or necessarily performed in the course of the duty. Could I just take your Honours to section 123 of the Act which states that:

(1)      A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done . . . 

(2)      Any liability resulting from an act or omission that, but for sub‑section (1), would attach to a member of the force or police recruit, attaches instead to the State.

Now, it speaks of acts or omissions, and the only acts or omissions that can be applicable – and we would say, with respect, that is where the Court of Appeal erred – are the acts or omissions constituting the negligence or constituting the trespass, not the overall conduct.

The Court of Appeal has picked one description of the conduct by the learned trial judge saying the behaviour in the house was a disgraceful exhibition, or something of – and acted in contumelious disregard, et cetera.  That was just a general description that mainly applied to Jenkin, not the others.  Jenkin was responsible for assaulting Horvath and he was also responsible for falsely arresting and detaining Kniese – David Kniese.  David Kniese and Colleen Kniese were not taken out, Horvath and Love were.  So they were unlawfully imprisoned, and indeed, once the trespass was made out, it is quite clear on the authority, as his Honour found, with respect, that the mere touching of the people inside constituted an assault and the detaining of them constituted an unlawful imprisonment, because they did not have the power to do it.

The Court of Appeal should have done, as the learned trial judge did, looked at the act constituting the negligence, the “act or omission” that is set out in section 123, those “acts or omissions” in deciding whether or not there would be transfer of liability, bearing in mind it refers to “Any liability resulting from an act or omission”. We say that the liability resulted from the acts or omissions of negligence and the act or omission in relation to the trespass.

Now, all Christensen did was not reasonably – it was not held that he did not have an honest belief that he had the power.  It was not held that none of these police officers who met there at random did not have the belief that they had the power.  It was solely that it was not a reasonable belief, because they had not asked questions sufficiently and ascertained what had happened, et cetera, and they had not established a reasonable belief that a serious indictable offence had been committed within the terms of the section, and that is what we say – that is the action.  They are the acts or omissions that must be looked at.

HAYNE J:   At the moment, a hurdle you have to cross in that respect is how can it be said that the conduct warrants aggravated or exemplary damages and yet was “necessarily or reasonably done or omitted to be done in good faith”?

MR HORE‑LACY:   We say that “necessarily or reasonably done or omitted to be done in good faith” has been correctly construed by the learned trial judge and incorrectly by the Court of Appeal.  The Court of Appeal’s construction, with respect, your Honour, makes it almost impossible to sue police, if that is the exhaustive field, because ‑ ‑ ‑

HAYNE J:   There is no doubt about suing police.  Let us understand.  There are judgments against the police officers concerned and those, as I understand it, are not changed.

MR HORE‑LACY:   Yes.  Could we say in relation to that, your Honour, that the Court of Appeal referred to the second reading speech and it referred to legislation in New South Wales.  In relation to that, it referred to the second reading speech by the Minister stating:

This measure will free responsible police members from the worry of legal proceedings while performing their duties and is consistent with the protection already afforded police officers in New South Wales and South Australia.

There the Court of Appeal cited the relevant sections, the South Australian which provided:

“(1)     A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law.”

Section 213(1) of the Police Service Act (NSW) is similar. Neither of them refer to reasonable or necessary aspects, but both refer to duties and powers under Acts.

We would say that the legislature has intended the words “reasonably or necessarily” to refer to the incidence of employment, otherwise the words “in good faith” mean nothing. If the words “in good faith” – it is so close, we would say identical as described or as really construed by the Court of Appeal, that it must be reasonable according to the perception of the police officer involved, it must be reasonable, we would say that that really makes the words “in good faith” otiose because they would have no extra meaning. Not only that, we would say on any view, if in fact it is the acts or omissions of negligence and trespass which one looks at, then there is no reason, there is no basis upon which the Court of Appeal could say that those acts, on any view, on any basis of the interpretation of section 123, were not reasonably or necessarily performed.

We would submit basically that the interpretation of the learned trial judge was the only proper interpretation.  If Enever still applies and that is meant to cover the field, then it will be virtually impossible to sue or have the State of Victoria as a party to almost any proceeding, any action concerning unlawful conduct of the police.  May it please your Honours.

HAYNE J:   Thank you, Mr Hore‑Lacey.  Yes, Mr Wheelahan.

MR WHEELAHAN:   If the Court pleases.  Can I identify the error the Court of Appeal made in relation to causation and answer your Honour Justice Hayne’s question about duty of care by looking at the facts in relation to the plaintiff, Colleen Kniese.

When one looks at a duty of care, the duty is to take reasonable care not to cause the plaintiff injury.  It is not whether or not one commits a tort.  In relation to Colleen Kniese, the first question is what caused her injury.  She was assaulted by Constable Paxton, who is not a party to this proceeding.  Constable Paxton put her to the floor and held her down in a humiliating position.  Her injuries included nervous shock as a consequence of seeing her friend, Horvath, battered by Jenkin.  Christensen is not liable for the intentional torts committed by Jenkin, except by way of the finding of negligence which the learned trial judge made.

Christensen’s liability for Paxton’s battery is founded solely on the ground that Paxton’s battery was part of the concerted plan.  The facts and circumstances supporting the finding that Christensen acted in concert with Paxton were co‑extensive with the facts supporting the finding that he was negligent in planning, supervising and executing the raid.   Now, it is important that it was found that the negligence extended to the omissions of Christensen inside the house because he went off after Love and left Jenkin and Paxton on their own.  Accordingly, Christensen’s negligence was a concurrent cause of Colleen Kniese’s injuries and it was concurrent with his liability under the intentional torts.

Now, just pausing there, one effect of the Court of Appeal’s decision is that the chain of causation between the negligent planning of the raid and Colleen Kniese’s injuries was broken because the raid was effected and, in my submission, that is an absurdity.  The Court of Appeal was in error in denying the existence of multiple causes of Colleen Kniese’s injuries and the same analysis can be applied to two of the other three plaintiffs.

In relation to the construction of section 123, the form of words of that section are found in a number of other Victorian statutes which I have noted in my summary of argument. The Court of Appeal has strangled section 123 and other similar provisions. The phrase “necessarily or reasonably” does no more than define the nexus required between the act or omission of the member and the course of duty. The phrase is there to make clear that in determining whether the acts or omissions were in the course of duty it is not just a necessary connection that is covered, but also a reasonable connection. The section is there for a beneficial purpose.

Now, according to the Court of Appeal, there is this additional element of reasonability. That requires an assessment to be made as to whether the member’s conduct was reasonable from the perspective of the police defendant having regard to all the circumstances. That test supplants the element of good faith. Reasonability becomes the dominant condition necessary to engage section 123. For that reason, the Court of Appeal’s construction of 123 was erroneous.

The State made a number of very clear concessions at trial. The decision of the Court of Appeal by introducing the concept of reasonability into section 123, which on a proper construction is not there, and also making the findings in relation to causation and negligence had the effect of depriving Christensen of a defence under section 123 and there has, therefore, been a substantial miscarriage of justice. If the Court pleases.

HAYNE J:   Yes.  Mr Murdoch.

MR MURDOCH:   If the Court pleases.  Your Honours have heard that the two respondents for whom I appear, Davison and Saunders, did not assault anybody in the course of the raid.  They, it is true, committed a trespass and ultimately were found to be jointly liable for that tort and the tort of false imprisonment with other members of the police on that occasion, but they acquired most of their liability by reason of the fact that they were acting in concert with other members of the police force.

HAYNE J:   Were they found liable for exemplary or aggravated damages?

MR MURDOCH:   Yes, they were, by reason of the acting in concert on the torts of assault in relation to Love and ‑ ‑ ‑

HAYNE J:   On the basis that the conduct of officers – let us leave aside which officers for the moment – was, in effect, in contumelious disregard of the rights of the persons who were being assaulted, whose land was the subject of trespass, et cetera.  Is that right?

MR MURDOCH:   Yes, your Honour, but the concession had been made at trial that they entered onto the premises in good faith, that is to say, albeit that they had, as it was found later, no reasonable grounds for the belief under section 459A, they, nonetheless, had an honest belief as to that and that they entered the premises, they committed the trespass in good faith. In those circumstances, and in circumstances where the liability that subsequently attached to them attached by reason of them acting in concert, it is my submission that they were entitled to the protection of section 123.

They were entitled to that protection on the basis that they had acted in good faith throughout in the course of their duty.  There was no question of that, in my submission.  They had entered on the premises pursuant to a direction given them by a superior in the form of Sergeant Christensen, part of, as they understood it, carrying out their duty.  They were not to assess whether or not Sergeant Christensen had the necessary reasonable grounds.  They did what they were told to do and, in my submission, it is hard to see, in those circumstances, how it was that they acted other than reasonably and necessarily in good faith in the course of their duty.  In those circumstances, even for exemplary and aggravated damages, for which they were jointly liable, that liability should have been transferred to the State. 

Your Honour would be familiar with the wording of section 123(2) which speaks of “Any liability” which otherwise would have attached to an individual member of the police will be transferred and that, in my submission, includes ‑ ‑ ‑

HAYNE J:   You have to bring it within (1) first, have you not?

MR MURDOCH:   Indeed.  Subsection (2) is not restricted in terms of what may be transferred, it having been acquired.

HAYNE J:   If (1) applies, I understand the argument to be that (2) is then engaged.  The root question is, why was (1) engaged and how can (1) be engaged while the applicant and those supporting the applicant seek to maintain the awards of exemplary and aggravated.

MR MURDOCH:   Your Honour, they maintain it on the basis that – not on the basis of any actual contumelious disregard personally on behalf of Saunders and Davison in this context.  That liability arose by reason of Christensen’s contumelious disregard but not theirs personally, in my submission.  There was no such finding and, indeed, really no such allegation, as my learned friend has indicated this afternoon.  I note the time, your Honour.

HAYNE J:   We will not trouble you, Solicitor.  Justice Heydon will give the reasons of the Court.

HEYDON J:   One group of questions which it is desired to agitate on appeal is a group of factual questions.  Some relate to whether there was a causal link between the negligence of Christensen and the conduct of the police officers inside who committed intentional torts inside the premises.  Another instance of factual questions arising relate to the quantification of exemplary and aggravated damages.  There is no reason to doubt the correctness of the reasoning of the Court of Appeal on those factual questions.

A question of law is raised in view of a division between the trial judge and the Court of Appeal on the true construction of section 123 of the Police Regulation Act 1958 (Vic). That is a provision which is unique to Victoria which has no counterpart in other jurisdictions. It is not appropriate in this case for the correctness of what the Court of Appeal said to be considered.

The final issue raised is whether the High Court ought to overrule its own decision in Enever’s Case.  As a proposition of the common law, that is well settled.  It has, in numerous respects, been abrogated or qualified by legislation.  The field is one which is better remediable by legislation than by a reconsideration of Enever at this stage.  Accordingly, the application for special leave is refused with costs.

HAYNE J:   The Court will adjourn. 

AT 3.19 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.26 PM:

HAYNE J:   Yes, Mr Hore‑Lacy.

MR HORE‑LACY:   I apologise for asking your Honours to come back.  Your Honours made an order that the applicant pay all respondents’ costs.  Three respondents went down with us, your Honour, so, in our submission, we should not have to pay their costs – not the respondents that supported us.  We should just have to pay the State of Victoria’s costs.

HEYDON J:   What do the other respondents say about that?

MR HORE‑LACY:   They are not saying anything, I think.  One says that they would not oppose it and another says that Mr Wheelahan says that he is not saying anything, not going to argue against ‑ ‑ ‑

HEYDON J:   The order you are prepared to tolerate is that you pay the State of Victoria’s costs and that otherwise there be no order.

MR HORE‑LACY:   That is, just the State of Victoria’s costs.  There is no order of costs in relation to the other respondents.

HAYNE J:   Anybody seek to be heard against that?

MS TATE:   No, your Honour.

HAYNE J:   The order will be we will recall the order made as to costs.  In lieu, we will order that the applicant pay the State of Victoria’s costs, otherwise no order.

AT 3.27 PM THE MATTERS WERE CONCLUDED