Jennings v Police

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SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

JENNINGS v POLICE

[2019] SASCFC 93

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)

30 July 2019

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - POLICE OFFICERS

The appellant, Mr Jennings, appeals against an order of a District Court Judge giving summary judgment in favour of the respondent, the South Australian Commissioner of Police, on the grounds that the appellant’s statement of claim did not plead an arguable cause of action.

The appellant claimed damages against the respondent and the Commissioner for the Australian Federal Police for sending to his employer a police certificate which wrongly recorded a conviction. Upon receiving that certificate, the appellant’s employment was terminated.

The appellant filed a claim for negligence, and the respondent filed an application for summary judgment, which was refused by a Master of the District Court. That refusal was successfully appealed before a Judge of the District Court.

The questions on appeal before this Court are:

1.   Whether the Judge’s decision granting summary judgment was made in error.

2.   Whether the appellant’s statement of claim disclosed no reasonable basis for a claim in negligence.

Held per Kourakis CJ (Stanley and Parker JJ agreeing), allowing the appeal:

1.   The harm an applicant will suffer in losing employment is obvious, and the circumstances strongly support the imposition of a duty of care.

2.   The criminal history database may be used to prepare offender histories for sentencing by courts or to record outstanding arrest warrants. In this aspect of its use it may be arguable that police operational requirements are not reason enough to deny a duty of care.

3.   The provision of a police clearance for employment purposes is a discrete further step in the use of the database. The person or persons affected are not an indeterminate class.

4.   In the absence of any identifiable statutory or common law duty to provide employment certificates, it is arguable that on the voluntary assumption of the task of providing these certificates for a fee, reasonable care should be taken to convey accurate information of the applicant’s convictions.

5.   The summary judgment entered against the appellant should be quashed.

6.   The statement of claim is to be struck out with permission to refile.

District Court Rules 2006 (SA) rr 193, 232; Federal Court of Australia Act 1976 (Cth) s 31A; Federal Court Rules 2011 (Cth) r 26.01; Police Act 1998 (SA) s 5, referred to.
Tame v New South Wales (2002) 211 CLR 317, applied.
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401, distinguished.
Proude v Visic (No. 4) (2013)…

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Details
Case
[2019] SASCFC 93
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the SAPOL Commissioner for summary judgment against Mr Jennings, who had brought a claim alleging negligence by police. The core dispute revolved around whether the police owed Mr Jennings a duty of care beyond their general duties to the public. The case was heard in the Supreme Court of South Australia.

The legal issues before the Court were whether Mr Jennings' claim disclosed a reasonable cause of action and, consequently, whether the proceedings should be summarily dismissed. This required the Court to consider the circumstances under which a duty of care could be imposed on police officers, particularly in relation to the potential for an assumption of responsibility by the police, such as through the provision of police certificates for a fee, independent of their statutory or common law policing responsibilities. The Court also had to determine whether such an order dismissing the proceedings would be interlocutory.

The Court reasoned that summary dismissal is a power that should not be exercised lightly. It acknowledged that while the existence of a duty of care is a question of law, it is fact-dependent. The Court referred to previous decisions, including *State of New South Wales v Spearpoint*, which emphasised the fact-rich nature of duty of care inquiries and the inappropriateness of summary dismissal at early stages if there is a possibility of proving facts that could substantiate the claim. The Court also considered *Fuller-Wilson v State of New South Wales*, which noted that summary dismissal might be warranted to avoid close factual scrutiny of complex public duties, but cautioned against such dismissals. The Court ultimately held that an order dismissing an action because it is frivolous, vexatious, an abuse of process, or fails to disclose a reasonable cause of action is an interlocutory order.

Orders

Orders of the court

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Background

Background to the litigation

In State of New South Wales v Spearpoint,[27] the Court of Appeal of New South Wales upheld the trial Judge’s refusal of the State’s application for summary dismissal. Allsop ACJ stated:[28][23]Whilst the ultimate question as to the existence of a duty of care is one of law the task is one which is fact rich and fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey it is “a value judgment upon ascertained facts”.[24]Here the testing and possible vindication of the plaintiffs’ assertions through the legal process will depend significantly upon the relationship proven on the particular facts between the plaintiffs and the defendant. One aspect of this, on the material in the papers could be circumstances of communication of the fact that a warrant had issued. This may conceivably give rise to questions of assumption of responsibility whether to an individual or generally which might assist in the imputation of a legal obligation to act and to exercise care. I do not draw this conclusion, I only state it to illuminate the potential for the fact based legal imputation.[25]Whilst of course we must assess the present procedural rights by reference to the presently pleaded case, it is appropriate to judge the exercise of the power to dismiss the claim with an eye to the possible development of the case through the pleadings and the evidence.[26]It is often, though not always, inappropriate to dismiss summarily a claim such as this on the pleadings, at least as they stand at an early stage in litigation. Whilst the applicant has put forward arguments that have some force, those arguments assume an inability of the respondents’ case at trial to elicit facts reasonably connected with the current pleadings that could substantiate the claim as a matter of law. I cannot see that with the clarity required in a summary application.(Emphasis added; citations omitted)[27] [2009] NSWCA 233.[28] State of New South Wales v Spearpoint [2009] NSWCA 233 at [23]-[26]. The possible development of Mr Jennings’ case through amended pleadings and evidence was canvassed extensively in the course of the submissions in this Court. A major area of possible development of Mr Jennings’ case concerns the SAPOL Commissioner’s assumption of responsibility by voluntarily undertaking to provide police certificates for a fee, independently of any statutory or common law policing responsibilities. Finally, it is necessary to mention Fuller-Wilson v State of New South Wales (Fuller-Wilson),[29] in which Basten JA, with whom White JA and Emmett AJA agreed, observed that summary dismissal may nonetheless be warranted. That is particularly so in the application of a rule of preclusion, the very purpose of which is to avoid close factual scrutiny of the execution of complex multi-faceted public duties, such as those owed by the police:[30][10] The need for caution in dismissing proceedings summarily is not to be doubted. Further, although the existence of a duty of care involves a question of law, it is axiomatic that the legal question must be answered by reference to specific facts. Nonetheless, there are circumstances where summary dismissal is appropriate on the basis of the assumed truth of the pleaded facts; particularly is that so where part of the reason for not imposing a duty of care is to avoid the close factual inquiry which would take place in the course of a trial. Summary dismissal applications have been upheld in a number of cases involving claims for negligent conduct by police officers discussed further below: see, eg, State of New South Wales v Klein and Rickard v State of New South Wales.(Citation omitted)[29] [2018] NSWCA 218.[30] Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [10].Imposition of a duty of care on police

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DCR 232 provides:232—Summary judgment(1) The Court may, on application by a party, give summary judgment for that party.(2) Summary judgment may only be given if the Court is satisfied that—(a)if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or(b)if the applicant is a defendant—there is no reasonable basis for the claim against the applicant. In Tavitian v Commissioner of Highways, I explained the relationship between rules 193, 196 and 232 of the Supreme Court Civil Rules 2006 (SA) as follows:[3][19]Pursuant to rule 232 summary judgment may be given on the application of a defendant if the Court is satisfied that “there is no reasonable basis for the claim against” the defendant. Summary judgment is not to be entered lightly.[20]A proceeding may be summarily dismissed pursuant to rule 193 if the claim is unsustainable such that the defect cannot be cured by amendment to the pleadings. A dismissal is not a final adjudication of the legal controversy but proceedings should not be summarily dismissed if there is a real question of fact or law to be determined. Pursuant to rule 104 Court may strike out a statement of claim, in a case in which it perceives there to be a real question of fact or law to be determined, if the statement of claim does not plead the circumstances of the underlying legal controversy in a way which discloses a reasonable cause of action.(Citations omitted)[3] [2015] SASC 108 at [19]-[20]. That explanation requires some qualification. As shall be seen, the dismissal of an action may operate as a judgment in favour of a defendant when sufficient facts are averred to identify a justiciable controversy and, taking the pleaded facts to be true and the inferences they support at their highest, no reasonable cause of action is disclosed. That was, in effect, the contention of the SAPOL Commissioner below and on appeal in this Court. The application is therefore one which fell within DCR 193. The question on the application is whether, within the essential scaffolding of Mr Jennings’ pleaded case, particular facts may be proved which provide a reasonable basis on which a duty of care may be found consistent with the authorities which hold that, generally, such a duty will not be superimposed on the common law and statutory duties owed by police to the public as a whole. An order dismissing proceedings because they are frivolous, vexatious or an abuse of process of the Court is an interlocutory order. In Re Luck,[4] the Full Court of the High Court, comprising McHugh ACJ, Gummow and Heydon JJ, held that an order, made by Gleeson CJ, refusing to give Ms Luck leave to issue a writ of summons and statement of claim because the statement of claim disclosed no cause of action, was an interlocutory order. The High Court held that the order refusing leave was made in the exercise of the original jurisdiction of the Court to control its own processes. The Court characterised the order as one made to prevent ‘an abuse of the process of the Court or a frivolous or vexatious proceeding’.[5] The Court held that such an order was interlocutory:[6][7]The long line of cases to which Lord Evershed referred was confirmed in Tampion v Anderson, a decision of the Judicial Committee of the Privy Council on a petition for special leave to appeal against orders of the Supreme Court of Victoria. In Tampion, the Judicial Committee held that orders staying actions for defamation and misfeasance of office on the ground that they were frivolous, vexatious and an abuse of process were interlocutory orders. Lord Kilbrandon, giving the advice of the Judicial Committee, said that "a consistent line of authority" left "no doubt" that such orders were interlocutory. His Lordship said that the "matter is really put beyond doubt" by Hunt and cited the above statement of Lord Evershed. When Tampion was decided, the Judicial Committee of the Privy Council was the final court of appeal for Australia for matters such as those involved in that case. Consequently, the advice of the Judicial Committee in Tampion was binding on all Australian courts including this Court. [8]Privy Council decisions no longer bind this Court. Moreover, no case in this Court has expressly decided that interlocutory orders include an order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action. But a number of cases decided in this Court before and after Tampion are consistent with the view that an order falling within any of these categories is an interlocutory order. In Pye v Renshaw, the Court held that an order dismissing a suit if no amendment were made to the statement of claim within 21 days was an interlocutory order. In Hall v Nominal Defendant, the Court held that an order refusing an extension of time in which to sue was an interlocutory order. Taylor J referred with evident approval to the rule, established in England, that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process or that it disclosed no cause of action was interlocutory in nature. In Carr v Finance Corporation of Australia Ltd [No 1], the Court held that an order of the Supreme Court of a State refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence was an interlocutory order. In Bienstein, the Court found that orders made by a single Justice (a) to dismiss an application to disqualify himself from hearing the application for removal, and (b) to remove particular causes pending in the Family Court into the High Court, were interlocutory orders. [9]Given the long established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.(Citations omitted)[4] (2003) 78 ALJR 177.[5] Re Luck (2003) 78 ALJR 177 at [5].[6] Re Luck (2003) 78 ALJR 177 at [7]-[10].

Ratio Decidendi

Legal Principle Established

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