Irvine v The State of Western Australia
[2000] WASC 289
•30 NOVEMBER 2000
IRVINE -v- THE STATE OF WESTERN AUSTRALIA [2000] WASC 289
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 289 | |
| Case No: | CIV:2448/1996 | 21 NOVEMBER 2000 | |
| Coram: | MASTER SANDERSON | 30/11/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | JOHN HOWARD IRVINE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Application for further and better answers to interrogatories Turns on its own facts |
Legislation: | Police Act 1892, s 10 |
Case References: | Bridal Fashions Pty Ltd v Controller General of Customs (1996) 17 WAR 499 Enever v The King (1906) 3 CLR 969 Griffiths v Haines (1984) 3 NSWLR 653 Pinson v Lloyds & National Provincial Bank Ltd [1941] 2 KB 72 Irvine v The State of Western Australia [2000] WASCA 56 Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32 Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550 Halliday v Nevill (1984) 155 CLR 1 Lippl v Haines & Ors (1989) 18 NSWLR 620 Zalewski v Turcarolo [1995] 2 VR 562 Gibbons v Duffel (1932) 47 CLR 520 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 Rondel v Worsley [1969] 1 AC 191 P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1996) 160 CLR 626 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- The Crown Suits Act 1947
BETWEEN : JOHN HOWARD IRVINE
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application for further and better answers to interrogatories - Turns on its own facts
Legislation:
Police Act 1892, s 10
Result:
Application refused
(Page 2)
Representation:
Counsel:
Plaintiff : Dr J L Cameron
Defendant : Mr B P King
Solicitors:
Plaintiff : Law Access
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Bridal Fashions Pty Ltd v Controller General of Customs (1996) 17 WAR 499
Enever v The King (1906) 3 CLR 969
Griffiths v Haines (1984) 3 NSWLR 653
Pinson v Lloyds & National Provincial Bank Ltd [1941] 2 KB 72
Case(s) also cited:
Irvine v The State of Western Australia [2000] WASCA 56
Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32
Aspar Autobarn Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550
Halliday v Nevill (1984) 155 CLR 1
Lippl v Haines & Ors (1989) 18 NSWLR 620
Zalewski v Turcarolo [1995] 2 VR 562
Gibbons v Duffel (1932) 47 CLR 520
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Rondel v Worsley [1969] 1 AC 191
P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1996) 160 CLR 626
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application seeking further and better answers to certain interrogatories administered with leave by the plaintiff to the defendant. To understand the issue raised by the application it is necessary to say something of the facts of the case and to make reference to the pleadings.
2 The plaintiff is the father of the late Colin Irvine and he brings this action in a representative capacity under the provisions of the Fatal Accidents Act 1959. On 9 January 1991 certain police officers, members of the Tactical Response Group, entered premises in Kenwick. Colin Irvine was in the premises and was being sought by the police in relation to their inquiries. Precisely what happened in the house is a matter of dispute and is a central issue in these proceedings. It is enough if I say that one of the police officers shot and killed Colin Irvine. The plaintiff now says that Colin Irvine's death was wrongful and that the defendant is liable to pay damages under the provisions of the Fatal Accidents Act.
3 Paragraph 4 of the amended statement of claim is in the following terms:
"At or shortly before 3.45am on 9 January 1991 members of the Tactical Response Group, a unit of police officers the servants and/or agents of the Defendant ('the police officers') broke and entered the premises then occupied by the deceased at 31 Royal Street Kenwick ('the premises') without notice to the deceased."
4 In response to that plea the defendant pleads by par 2 of its amended defence as follows:
"2. In relation to paragraph 4 of the Statement of Claim the Defendant admits that on 9 January 1991 police officers who were members of the Tactical Response Group entered premises at 31 Royal Street, Kenwick and otherwise the Defendant:
2.1 denies that the police officers as defined in paragraph 4 or any one or more of them were servants or agents of the Defendant and says that the police officers as defined and each of them at the relevant time:
2.1.1 were members of the Police Force appointed pursuant to the Police Act 1892; and
(Page 4)
- 2.1.2 were exercising discretion as a peace officer or exercising an independent duty or an independent authority.
- 2.2 states that:
2.2.1 the Defendant is not responsible or vicariously liable for the conduct of the police officers as defined or any one or more of them; and
2.2.2 there is no relationship between the police officers as defined or any one or more of them and the Defendant which would render the Defendant liable for any act or omission of the police officers as defined or any one or more of them; and there therefore
2.2.3 the Statement of Claim discloses no reasonable cause of action against the Defendant.
2.3 does not admit each and every other allegation in paragraph 4 of the Statement of Claim."
5 It is also appropriate to refer to par 7 of the defence. It reads as follows:
"7. The Defendant denies each and every allegation pleaded in paragraph 9 of the Statement of Claim and states further that in any event the killing of the deceased was justified or excused by law.
PARTICULARS
7.1 The shooting of the deceased by Constable Stephen Butler was an act of self defence against an unprovoked assault. The conduct of the deceased was such as to cause a reasonable apprehension of death or grievous bodily harm and Constable Butler believed on reasonable grounds that he could not otherwise protect himself from death or grievous bodily harm in that:
7.1.1 the deceased was armed with a handgun.
(Page 5)
- 7.1.2 the deceased refused to lower the handgun from the high-port position despite repeated directions to do so by a Tactical Response Group officer.
7.1.3 the deceased then lowered the handgun and aimed it directly at Constable Butler.
7.1.4 the deceased had a history of violent criminal offences.
7.1.5 the deceased was sought by police on suspicion of the wilful murder on 28 December 1990 of Daniel Mark English.
7.1.6 the deceased had previously made threats to kill a policeman."
6 It is common ground between the parties that if the defendant is to be liable to the plaintiff it will be on the basis of vicarious liability. In other words, the plaintiff says that the police officers in question acted wrongly and as the employer of those police officers, the defendant is liable for their actions. The defendant denies that the police officers are properly categorised as servants or agents of the defendant. Rather, they say that they were peace officers who were exercising an independent authority and consequently the defendant is not liable for their actions. Put another way, the defendant says it is not as a matter of law vicariously liable for the actions of its employees when they are acting in their capacity as peace officers. The defendant pleads that in this instance the police officers were acting in their capacity as peace officers and that is the end of the matter - no liability can attach to the defendant for the actions of the police. It is worth noting that in par 2 of the defence the defendant denies that the police officers were its servants or agents in the circumstances in which Colin Irvine died. However, there is no denial that the police officers broke into the premises in Kenwick. Rather, this material fact is not admitted. What that means of course is that at trial the plaintiff will have to lead evidence to establish the material fact. The defendant will not be permitted to run a positive case against the plaintiff. That is to say, it will not be open to the defendant to lead evidence that the police officers gained admission other than by breaking and entering - for instance, by being admitted by Colin Irvine or some other person within the premises: See Pinson v Lloyds & National Provincial Bank Ltd [1941] 2 KB 72; Bridal Fashions Pty Ltd v Controller General of
(Page 6)
- Customs (1996) 17 WAR 499. This is a matter to be borne in mind in the context of this application.
7 The answers complained of by the plaintiff relate to interrogatories 3.1 (except 3.1.5), 3.2 (except 3.2.5) and 3.3 (except 3.3.5). In fact, no objection is taken to the answers to 3.1.1, 3.2.1 and 3.3.1. These three paragraphs identify the police officers who entered the Kenwick property. As to the other interrogatories, the nature of the dispute can be illustrated by quoting the questions and the answers to question 3.1. They read as follows:
"3.1 Where the exercise of a discretion as a peace officer is relied upon or is relevant to the Defendant's Amended Defence,
…
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.
ANSWER TO INTERROGATORY 3.1
…
3.1.2 The character of the discretion exercised by each of the police officers was the freedom lawfully to act and think as the respective officers thought fit in the circumstances.
3.1.3 The circumstances which led to the exercise of the discretion are; (as described in paragraph 7.1 of the Amended Defence,) that:
3.1.3.1 the conduct of Colin Irvine ('Irvine') was such as to cause a reasonable apprehension of death or grievous bodily harm and Stephen Butler believed on reasonable grounds that he could not otherwise protect himself from death or grievous bodily harm in that:
• Irvine was armed with a handgun.
(Page 7)
- • Irvine refused to lower the handgun from the high--port position despite repeated directions to do so by a police officer.
• Irvine then lowered the handgun 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.
3.1.4 As a consequence of the exercise of the discretion:
3.1.4.2 the police officers entered the premises at 31 Royal Street Kenwick; and
3.1.4.2 Stephen Butler shot Irvine as an act of self-defence against an unprovoked assault."
8 It is immediately apparent that the answer to interrogatory 3.1.3 is confused. There is a reference in the answer to "3.1.3.1". That should not be there and is simply a typographical error. Of more significance, the bullet points are clearly in an inappropriate order. The last three bullet points should come before the first three bullet points. If that change is made, leaving aside matters of principle, the answer at least makes logical sense. Counsel for the defendant conceded that answer 3.1.3 in its present form was confusing and acknowledged, whatever the outcome of this application, the answer needed to be reframed. Counsel submitted that once that was done the information contained within the answer was in all respects sufficient.
9 During the course of submissions both counsel referred to the so-called Enever doctrine. This principle arises from the decision of the High Court in Enever v The King (1906) 3 CLR 969. The case itself was concerned with the liability of the Crown for acts of a police officer while he was acting as a peace officer. It is important to note the distinction between a police officer and a peace officer. When he is commissioned a police officer takes an oath in a form presently to be found in s 10 of the Police Act. This oath requires the police officer to uphold the law "without favour or affection, malice or ill-will". By taking this oath a police officer is appointed by the State as a peace officer. But as a police
(Page 8)
- officer, he or she may have other duties. In Enever the position was explained by O'Connor J in the following way (at 990):
"In a general sense, no doubt, the constable was the servant of the Government at the time when the trespass complained of was committed. He held his office under the Police Regulation Act 1898, which gave the Government power to employ, to pay, and to dismiss him. He was probably required to perform many duties besides those imposed upon a constable at common law or by Statute, and in the performance of such duties he would be the servant of the Government, and they would be directly liable for any neglect or default committed by him in the course of his employment; but the question for our decision is was he the servant of the Government in the performance of the particular duty of making the arrest which is the subject of the action. The test of liability in this as in every case is, was the servant in doing the particular act complained of subject to the control of the master, as stated by Bowen LJ in Donovan v Laing, Wharton, and Down Construction Syndicate [1893] 1 QB 629 at 633-4."
11 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? Or as the plaintiff alleges, were they acting in a role which was part of and incidental to their employment such that the State can be vicariously liable for their actions? It is important to note, as counsel for the defendant pointed out during the course of his submissions, that it is not relevant in this context to consider whether or not the actions of the police officers were unlawful. If they were not, then no liability could attach to the defendant in any event. It is only if the
(Page 9)
- plaintiff establishes that the actions of the police officers were unlawful the question of whether or not the defendant is vicariously liable or the actions of the police officers arises.
12 Viewed against that background it seems to me that the answers provided to the interrogatories are, in all senses, sufficient. I do think, however, that confusion has resulted from the use of the word "lawfully" in the answer to question 3.1.2. By using that word the defendant has seemed to indicate that the police officers acted in all respects according to the law. However, as I have explained, that is not the defendant's case at all. The defendants say nothing about whether the actions of the police officers were or were not lawful. What they say is that the police officers were acting as peace officers and therefore the State is not liable for their actions. To that extent at least I think par 3.1.2 requires some amendment. This is in addition to the amendments that must be made to par 3.1.3 to remove the present confusion. However, the answers themselves, that is to say the information contained with the answers is, in my view, in all respects sufficient.
13 I will hear the parties as to the precise form of orders and as to costs.
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