Irvine v The State of Western Australia
[2001] WASCA 147
•12 APRIL 2001
IRVINE -v- THE STATE OF WESTERN AUSTRALIA [2001] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 147 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:205/2000 | 12 APRIL 2001 | |
| Coram: | ANDERSON J TEMPLEMAN J | 12/04/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | JOHN HOWARD IRVINE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Procedure Appeal Application for leave to appeal Whether answers to interrogatories were adequate Whether interrogatories in the form of particulars were sufficient to enable applicant to know what case he had to meet at trial in relation to discretion of peace officers |
Legislation: | Nil |
Case References: | Irvine v State of Western Australia [2000] WASCA 56 Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550 Enever v R (1906) 3 CLR 969 Entick v Carrington (1765) 2 Wils 275 Gibbons v Duffel 47 CLR 520 Griffiths v Haines [1984] 3 NSWLR 653 Halliday v Nevill (1984) 155 CLR 1 Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32 Lippl v Haines & Ors (1989) 18 NSWLR 620 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 Ocean Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 Plenty v Dillon (1991) 171 CLR 635 Rondel v Worsley [1969] 1 AC 191 Webster v Lampard (1993) 177 CLR 598 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : IRVINE -v- THE STATE OF WESTERN AUSTRALIA [2001] WASCA 147 CORAM : ANDERSON J
- TEMPLEMAN J
- Appellant (Plaintiff)
AND
THE STATE OF WESTERN AUSTRALIA
Respondent (Defendant)
Catchwords:
Procedure - Appeal - Application for leave to appeal - Whether answers to interrogatories were adequate - Whether interrogatories in the form of particulars were sufficient to enable applicant to know what case he had to meet at trial in relation to discretion of peace officers
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Appellant (Plaintiff) : Dr J L Cameron
Respondent (Defendant) : Mr B P King
Solicitors:
Appellant (Plaintiff) : Friedman Lurie Singh
Respondent (Defendant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Irvine v State of Western Australia [2000] WASCA 56
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Case(s) also cited:
Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550
Enever v R (1906) 3 CLR 969
Entick v Carrington (1765) 2 Wils 275
Gibbons v Duffel 47 CLR 520
Griffiths v Haines [1984] 3 NSWLR 653
Halliday v Nevill (1984) 155 CLR 1
Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32
Lippl v Haines & Ors (1989) 18 NSWLR 620
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Ocean Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
Plenty v Dillon (1991) 171 CLR 635
Rondel v Worsley [1969] 1 AC 191
Webster v Lampard (1993) 177 CLR 598
Wilson v Metaxas [1989] WAR 285
(Page 3)
1 TEMPLEMAN J: This is an application for leave to appeal from a decision of a Master who did not accede to the applicant's contention that answers given to interrogatories were inadequate. The background to the matter is set out in an earlier Full Court judgment in Irvine v State of Western Australia [2000] WASCA 56, 9 March 2000.
2 The applicant is the father of the late Colin Irvine who died on 9 January 1991 when he was shot and killed by a police officer. The applicant commenced proceedings against the respondent, the State of Western Australia. The applicant did not commence any proceedings against the police officer himself.
3 In the applicant's statement of claim he pleads that officers of the Western Australian Police Service, who were members of the tactical response group, broke and entered into premises then occupied by the deceased without notice; and that one of those police officers then intentionally discharged a shotgun directed at the deceased's head causing injuries from which he died. The applicant goes on to allege that the deceased's death was caused by the wrongful acts of the respondent, its servants or agents. Alternatively, it is alleged that the deceased's death was caused by the neglect or default of the respondent, its servants or agents.
4 The respondent's defence admits that on 9 January 1991 police officers who were members of the tactical response group entered into the relevant premises. But the respondent denies that the police officers were its servants or agents. The main point of contention in this application arises from the respondent's assertion that those police officers were exercising the discretion of peace officers; or were exercising an independent duty or an independent authority.
5 The matter came last before the Full Court because the applicant sought to interrogate the respondent about various matters relating to the deceased's death. The application was brought because the Master had disallowed all of the interrogatories. On appeal the applicant was partially successful. The Court held that the interrogatories fell within two broad categories, those which were directed to obtaining admissions, and those directed to the clarification of the respondent's case. Interrogatories in the latter class were allowed. That was because the Full Court was of the view that the assertion by the respondent that the police officers concerned were exercising the discretion, duty or authority of peace officers was not sufficiently clear to enable the applicant to know what case he had to meet at trial.
(Page 4)
6 The respondent was therefore directed to answer three interrogatories in order to clarify that issue. The interrogatories referred to the discretion of a peace officer, the exercise of the independent duty, and the exercise of the independent authority relied upon by the respondent.
7 In each case the answer was substantially the same. It will be convenient to set out the interrogatory and the answer in relation to the peace officer issue. The interrogatories are in these terms;
"Where the exercise of a discretion as a peace officer is relied upon or is relevant to the defendant's amended defence:
3.1.1 identify each police officer who is alleged to have exercised such discretion as a peace officer;
3.1.2 describe the character of the discretion exercised by that police officer;
3.1.3 identify the circumstances which led to the exercise of the discretion;
3.1.4 describe the actions taken by the police officer as a consequence of the exercise of that discretion."
8 In answer to those interrogatories the respondent first identified the police officers by name. No issue is taken with the sufficiency of that answer. The character of the discretion is then said to be:
"The freedom lawfully to act and think as the respective officers thought fit in the circumstances."
9 Then in answer to the question which requires the circumstances to be identified, the respondent said:
"The circumstances which led to the exercise of the discretion are (as described in par 7.1 of the amended defence) that -
the conduct of Colin Irvine was such as to cause a reasonable apprehension of death or grievous bodily harm and Stephen Butler (one of the police officers concerned) believed on reasonable grounds that he could not otherwise protect himself from death or grievous bodily harm in that -
• Irvine was armed with a hand gun;
(Page 5)
- • Irvine refused to lower the hand gun from the high port position despite repeated directions to do so by a police officer;
• Irvine then lowered the hand gun and aimed it directly at Stephen Butler;
• Irvine had a history of violent criminal offences;
• Irvine was sought by police on suspicion of the wilful murder on 28 December 1990 of Daniel Mark English;
• Irvine had previously made threats to kill a policeman."
10 In answer to the question directed to the consequences of the exercise of that discretion the respondent answered that the police officers entered the premises and Stephen Butler shot Irvine as an act of self-defence against an unprovoked assault.
11 That on its face appears to be a full and sufficient answer to the interrogatory. However, it is submitted on behalf of the applicant today that the answer is insufficient. It is said to be an evasive answer because it does not fit the facts as the applicant believes them to be as a result of evidence given on some previous occasion in, I think, a Coronial inquiry. The submission is that the answer is directed only to the shooting of the deceased and does not relate to the circumstances in which the police officers concerned entered the premises.
12 In my view that is not the position. The answer states quite clearly that in consequence of the police officers acting and thinking as they though fit, in the circumstances which are set out, they entered the premises and then Mr Irvine was shot.
13 However, the submission is made that the basis for entering the premises is not clear from the answer. For example, it is said that the entry might have been pursuant to a search warrant or some warrant for the arrest of a person thought to be on the premises, there being, I think, some suggestion in the Coronial inquiry that that was the basis on which entry was made.
14 Be that as it may, it seems to me clear from the answer to the interrogatories that the police officers entered the premises in the exercise of the discretion which they believed themselves to be exercising: or,
(Page 6)
- perhaps more accurately, which the respondent believes the police officers were exercising.
15 It may well be, and I am for my part perfectly prepared to accept that evidence has been given on some previous occasion which is inconsistent with the answers given to these interrogatories. If that is so, then it is a matter which the applicant can deal with as he thinks fit at the trial. It does not, however, falsify the answer to the interrogatories in the sense that the answers given on oath are apparently sufficient answers to the questions which have been asked.
16 Reference has been made by counsel to the judgment of the learned Master which is the subject of this application in which the Master came to the view which I have expressed. The learned Master said at par 11 of his reasons:
"The crisp issue thrown up by the pleadings really comes down to this: were the police officers who entered the house in Kenwick and shot Colin Irvine acting as peace officers and exercising a discretion consistent with their role as peace officers?"
17 That is, I think, the question and indeed I understand it to be common ground that that is the question. That is a matter which will be explored at trial on the evidence which is then adduced. But the answers to the interrogatories are quite sufficient in my view.
18 Furthermore, it must be borne in mind that in an application such as this the applicant must not only show that the decision from which it is sought to appeal is wrong or at least attended with sufficient doubt to justify the grant of leave; the applicant must also show that substantial injustice would be done by leaving the decision unreversed. That is the effect of the decision in Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40.
19 In the present case I am not persuaded that the Master was wrong. Indeed, in my view he was entirely correct in his decision for the reasons which he gave. But even if I am wrong about that, I would not consider that substantial injustice would be done by leaving the decision unreversed because, for the reasons I have given, the matters raised by counsel today are in my view properly matters to be raised at trial when the circumstances of Mr Irvine's death will be no doubt explored in more detail. For those reasons I would not grant leave to appeal.
(Page 7)
20 ANDERSON J: I agree that leave to appeal should be refused for the reasons given by Templeman J.
0
12
1