Jennings v Police
[2019] SASCFC 93
•30 July 2019
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) 117 SASR 560; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FC7 372; Luck v University of Southern Queensland (2009) 176 FCR 268; State of New South Wales v Spearpoint [2009] NSWCA 233, discussed.
Tavitian v Commissioner of Highways [2015] SASC 108; Re Luck (2003) 78 ALJR 177; Macantangay v The State of New South Wales (No 2) [2009] NSWCA 272; Rogers v Legal Services Commission (1995) 64 SASR 572; Spencer v Commonwealth (2010) 241 CLR 118; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Hill v Chief Constable of West Yorkshire [1989] AC 53; Knightley v Johns [1982] 1 WLR 349; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Robinson v Chief Constable of West Yorkshire [2018] AC 736; State of New South Wales v Tyszyk [2008] NSWCA 107; Cran v State of New South Wales (2004) 62 NSWLR 95; Halech v State of South Australia (2006) 93 SASR 427; Fuller-Wilson v State of New South Wales [2018] NSWCA 218, considered.
JENNINGS v POLICE
[2019] SASCFC 93Full Court: Kourakis CJ, Stanley and Parker JJ
KOURAKIS CJ: The plaintiff, the appellant on the appeal (Mr Jennings), claimed damages against the South Australian Commissioner of Police (the SAPOL Commissioner) and the Commissioner for the Australian Federal Police (the AFP Commissioner) for sending to his employer a police certificate which wrongly recorded that he had been convicted of an offence of unlawful sexual intercourse with a person under 12 years of age when in fact he had been convicted only of unlawful sexual intercourse with a woman under the age of 17 when he was 21 years of age.
Mr Jennings appeals against an order of a District Court Judge, on appeal from a decision of a Master of the District Court, giving summary judgment in favour of the SAPOL Commissioner, the respondent on the appeal, on the grounds that his statement of claim did not plead an arguable cause of action.
I would allow the appeal and quash the summary judgment given for the SAPOL Commissioner. I am satisfied that the statement of claim discloses a cause of action, however, it is vaguely pleaded, fails to plead material circumstances, and contains unnecessary statements in the nature of legal submissions. I would dismiss the statement of claim but give Mr Jennings leave to file a fresh pleading.
The statement of claim
Mr Jennings’ statement of claim sought damages for ‘psychological injuries’ and ‘monetary losses due to provision of an incorrect National Police Certificate’. I will refer to it as the police certificate or the National Police Certificate interchangeably. No material facts were pleaded explaining the arrangements pursuant to which National Police Certificates were provided, but on the appeal it was common ground that there was no statutory basis for them.
The following facts were pleaded:
·Mr Jennings was born on 18 October 1956.
·In about October/November 2011 he applied for employment with a mining services company (the employer).
·Mr Jennings entered into an employment agreement with the employer and commenced work on or about 1 November 2011 as a plant operator.
·The employer required a National Police Certificate.
·On about 1 November 2011, Mr Jennings requested from the SAPOL Commissioner a National Police Certificate, by completing an application form which authorised the certificate to be sent to the employer and providing the ‘prescribed’ fee for that purpose. The statement of claim did not plead how the fee was determined or to whom it was ultimately distributed. It did not plead whether Mr Jennings or his employer paid it.
·On 9 November 2011, the AFP Commissioner sent the National Police Certificate to the employer on which it was recorded that Mr Jennings had been convicted on 6 February 1978 in the District Court of South Australia of ‘engaging in unlawful sexual intercourse with a person under 12’.
·Mr Jennings was never convicted of that offence.
·Mr Jennings’ employment was terminated on 13 December 2011 by the employer on the ground that the police certificate showed that he had ‘failed to declare all disclosable offences on [his] pre-employment statutory declaration’.
In an affidavit filed in support of the interlocutory application and sworn 22 January 2016, the solicitor acting for the SAPOL Commissioner deposed that the National Police Certificate was issued by the Australian Federal Police and not by his client, but that the source of the incorrect information on the certificate was a mistaken entry in SAPOL’s Police Incident Management System (PIMS) for which a SAPOL officer was responsible.
The parties also agreed certain facts for the purposes of the appeal from the decision of the Master to the Judge:
·At a date unknown, but before September 2011, Mr Jennings’ offender history card was entered into the SAPOL’s PIMS database. It was at that time that Mr Jennings’ conviction was incorrectly entered into the database as a conviction for unlawful sexual intercourse with a person under 12.
·Mr Jennings’ request for a National Police Certificate was forwarded by the SAPOL Commissioner to the Australian Federal Police who processed it.
·The request was entered into the National Police Checking Service Support System (the NSS) a database coordinated by CrimTrac, a Commonwealth agency.
·Upon being notified of Mr Jennings’ request for a National Police Certificate by CrimTrac, the SAPOL Commissioner uploaded Mr Jennings’ criminal history for which convictions had been recorded (aside from any convictions that had become spent convictions under the Spent Convictions Act 2009 (SA)) on PIMS to the NSS.
The parties also agreed that for the purposes of determining the application the District Court Judge could have regard to the information filed in the Magistrates Court charging Mr Jennings with unlawful sexual intercourse, contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA). A handwritten amendment on that information alleges that the offence was committed on a person of the age of 15 years. However, it is unlikely that that is the card from which the information was transcribed because on the hearing of the appeal in this Court the Solicitor-General referred to another card which has not been put into evidence.
It is likely that Mr Jennings pleaded guilty in the Magistrates Court, because no District Court information was put before the Judge, and because Judge Boylan sentenced Mr Jennings on 13 February 1978, only several months after the Magistrates Court information was filed. It appears from Judge Boylan’s sentencing remarks that the victim of the offence willingly consented to intercourse and, perhaps largely for that reason, the Judge imposed a small fine of $80.
Returning to the statement of claim, Mr Jennings pleaded what were in effect submissions of law. First, he pleaded that the SAPOL Commissioner was in a special position to affect him because the SAPOL Commissioner controlled the recording of convictions and the provision of that information to the NSS. Next, it was argued that by reason of that fact and Mr Jennings’ vulnerability, the SAPOL Commissioner assumed a duty of care to respond to the employment‑related police clearance certificate which had been requested.
Mr Jennings pleaded that the SAPOL Commissioner negligently breached that duty of care by failing to make adequate checks with the antecedent records held by them or the District Court of South Australia.
It was pleaded in the statement of claim that Mr Jennings made an application pursuant to s 8A and s 13 of the Spent Convictions Act 2009 (SA), and that on 29 November 2013, the Magistrates Court granted an order expunging all reference to sexual matters in his records.
It was alleged that Mr Jennings had been diagnosed with ‘anxiety/depression’. Relief by way of damages for that personal injury was sought. The plaintiff also claimed the costs of making the application to expunge the conviction and for loss of income and reduced earning capacity as a result of his loss of employment.
By application dated 22 January 2016, the Crown Solicitor acting for the SAPOL Commissioner sought summary judgment in favour of the SAPOL Commissioner. The application relied on rules 193 and 232 of the District Court Civil Rules 2006 (SA) (DCR). The accompanying affidavit did not verify facts on which it would be contended that the claim had no reasonable basis. Instead, the affidavit alleged that the statement of claim did not reveal an ‘arguable cause of action’. The application came before a Master who dismissed it. The SAPOL Commissioner appealed against that decision to a judge of the District Court. That appeal is as of right[1] and by way of rehearing.[2]
[1] District Court Act 1991 (SA) s 43.
[2] District Court Civil Rules 2006 (SA) r 286.
The Judge allowed the appeal and entered summary judgment for the SAPOL Commissioner. His essential reasons were as follows:
[111]While I bear in mind, as did the Master, that the decision to summarily dismiss an action, thereby depriving a party of a full hearing on the merits, should be exercised with extreme caution, the factual issues here are narrow in compass. I do not consider this case to be one where “subtle factual considerations” could emerge at trial.
[112]Whilst there may be a temptation to permit the plaintiff to proceed, it is my view that there can be no duty of care owed to the plaintiff by police in the circumstances of this case. The claim falls at each hurdle.
[113]The “success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision” of the High Court. I agree with the defendant’s proposition that accepting the plaintiff’s pleaded case at its highest “there is no reasonable basis for the claim” against the defendant.
[114]I allow the appeal and grant summary judgment in favour of the defendant. Having regard to that conclusion there is no need to consider the cross-appeal.
Summary dismissal or adjudication
Rule 193 of the DCR provides:
193 Court's power to dismiss proceedings
The Court may dismiss proceedings if—
(a)the pleadings disclose no reasonable cause of action; or
(b) the proceedings are frivolous, vexatious or an abuse of the process of the Court.
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].
In Macatangay v The State of New South Wales (No 2),[7] the Court of Appeal of New South Wales reached the same conclusion with respect to an order of summary dismissal made pursuant to Uniform Civil Procedure Rules 2005 (NSW) Part 13 r 13.4, which is in similar terms to DCR 193. The Court explained:[8]
[11]The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant at 440; Tampion v Anderson at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] at 248; Bienstein v Bienstein at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179:
“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)
[7] [2009] NSWCA 272.
[8] Macatangay v The State of New South Wales (No 2) [2009] NSWCA 272 at [11].
Applications to dismiss proceedings as an abuse of process are to be contrasted with applications brought on the ground that the statement of claim does not disclose a reasonable cause of action. In General Steel Industries Inc v Commissioner for Railways[9] (General Steel), Barwick CJ considered an application made pursuant to Order 26 r 18 of the then extant High Court Rules, and in its inherent jurisdiction, to set aside a written statement of claim on the grounds that ‘the plaintiff neither has nor discloses a reasonable, or … any, cause of action against the defendants or any of them’.[10] The plaintiff’s claim was based on a breach of infringements of letters patent it held under the Patents Act 1952‑1960 (Cth) (the Patents Act). The defendant relied on ss 125 and 132 of the Patents Act, which permitted the Commonwealth and the States, or a person properly authorised in writing by one of them, to make use of a patented invention. Section 132 provided that references to the Commonwealth or to a State included references to an authority of the Commonwealth or State.
[9] (1964) 112 CLR 125.
[10] (1964) 112 CLR 125 at 127.
Barwick CJ held that, on the facts pleaded by the plaintiff, the use of the patent by the Commissioner fell within the exemption granted by s 125. Barwick CJ struck out the whole of the plaintiff’s statement of claim and dismissed the plaintiff’s action with costs. It is plain from the reasons given by Barwick CJ immediately before making the order[11] that he considered that the dismissal was in the nature of a final order which would ‘prevent further proceedings in the action’.[12] Barwick CJ nonetheless made the order because he was satisfied that the claim was ‘manifestly groundless’ and therefore did not disclose a reasonable cause of action.
[11] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 135, 138.
[12] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 138.
For the purposes of the application, Barwick CJ accepted that the standard for the summary dismissal of an action was a high one:[13]
… It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action—if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal—is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
[13] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129.
Plainly, the action in General Steel raised a justiciable controversy; had the Commissioner used the plaintiff’s invention contrary to the provisions of the Patents Act? However, the statement of claim did not disclose a reasonable cause of action because, on the very facts it pleaded, the use was allowed by the Patents Act.
In Rogers v Legal Services Commission,[14] the Full Court of this Court considered the legal effect of the dismissal of an action under the predecessor of DCR 193. The question arose on an appeal from summary judgment given against the plaintiff, who had brought a second action making the same claim, on the ground that the claim was finally and conclusively determined against him by the summary dismissal of the first action. In the first action, the plaintiff’s summons and particulars of claim were struck out on the ground that they disclosed no reasonable cause of action. The plaintiff’s claim was that the Legal Services Commission wrongly breached its duty to provide him with legal assistance in Family Court proceedings. The order striking out the summons was made despite a concession by counsel for the Legal Services Commission that an action of misfeasance in public office was ‘theoretically open’. The Legal Services Commission sought summary judgment in the second action on the grounds that the matters complained of were res judicata, having been finally determined by the striking out of the summons of the earlier proceedings. The appeal was against the summary judgment for the Legal Services Commission. The legal effect of the dismissal of the summons in the first action was an issue on that appeal because the dismissal could not operate as res judicata if it was truly interlocutory.
[14] (1995) 64 SASR 572.
Lander J explained:[15]
In the ordinary course of events where a trial has taken place and a judgment entered, it is not difficult to determine whether the cause of action, the subject matter of a current set of proceedings, has been previously disposed of by a tribunal in circumstances which would give rise to a plea of res judicata.
More difficulty arises in circumstances where the matter has not gone to trial and has not been formally adjudicated upon by a tribunal for reasons that there has been a withdrawal by one party before the matter has concluded, or the parties have agreed to a compromise, or judgment has been entered by reason of the default of another party, or because the action has simply been dismissed.
I am unable to find any authority which directly bears on the matter agitated in this appeal. I think that may be so because the order which is said to give rise to the res judicata is a most unusual order, for reasons that I have already stated, in that the action has been dismissed because a cause of action cannot be identified on the then pleadings. The very nature of the order, ie that the proceedings are dismissed because the proceedings do not identify a cause of action, rather suggests that the cause of action could not have been disposed of, because, in fact the finding is there was no cause of action, and therefore no cause of action could have merged into the judgment. However, I shall discuss instances of the principle of res judicata.
[15] Rogers v Legal Services Commission (1995) 64 SASR 572 at 593.
Lander J then referred to circumstances in which a dismissal is plainly not a final adjudication and therefore does not support a plea of res judicata:[16]
Some actions come to a conclusion because they are not prosecuted with the appropriate degree of diligence and are therefore dismissed for want of prosecution. A dismissal for want of prosecution does not give rise to a plea of res judicata in a subsequent proceeding. In Pople v Evans, Ungoed Thomas J, after considering authority, determined that res judicata cannot be founded on an order of dismissal for want of prosecution.
…
In Baines v State Bank of New South Wales, the plaintiffs submitted to an order to make discovery within a particular time. After a series of defaults on the part of the plaintiffs an order was made by consent that in default of complying with the order for discovery, the statement of claim would be struck out. The order was regarded as an order for dismissal of the proceedings. In answer to an argument that an order of that kind would allow for a plea of res judicata or issue estoppel in the subsequent proceedings, Powell J said (at 738):
“So far as the plaintiffs' third submission is concerned, it seems to me that it is totally without substance. Even if, as I think it appropriate, the order of 29 January 1985 is to be regarded, in the events which have happened, as an order for the dismissal of the proceedings, the dismissal, not following a hearing on the merits (as to which see Newmont v Laverton Nickel NL (No 2)) would not give rise to an estoppel or a defence of res judicata (Supreme Court Rules 1970 (NSW), Pt 40, r 8; Samuels v Linzi Dresses Ltd (at 126) per Roskill LJ), it following that the plaintiffs remain free to commence, and subject to the result of any application for a stay, to prosecute, fresh proceedings, or even to seek to raise the matters which they have sought to raise in their proposed amended statement of claim by way of cross-claim in the Common Law proceedings.”
(Citations omitted)
[16] Rogers v Legal Services Commission (1995) 64 SASR 572 at 594-595.
Lander J contrasted dismissals of this kind, and non-suits, with an adjudication on the merits:[17]
So also does an action that is dismissed stand in a different position to an action in which judgment has been given after a hearing on the merits. As to whether or not the dismissal of an action gives rise to a matter capable of being pleaded as res judicata, that may depend upon whether the dismissal of the action is seen to have necessarily involved a determination of any particular issue or question of fact or law. If it does not, then the dismissal decides nothing, except the dismissal of the action itself.
(Emphasis added)
[17] Rogers v Legal Services Commission (1995) 64 SASR 572 at 594-595.
Lander J concluded:[18]
In this appeal the only matter that was decided in the first proceedings was whether the statement of claim, on the face of it, disclosed a cause of action. No finding was made as to any fact, nor as to the availability of any cause of action. In those circumstances it seems to me it cannot be said that the cause of action in the first proceedings has merged into a judgment. The principle of res judicata does not have application in these circumstances. In my opinion, the assumption that has been made by counsel for the respondent, and the various judicial officers, that res judicata would be an appropriate plea, is wrong. For those reasons, inevitably, it must follow that, in my opinion, the decision of the master to strike out these proceedings was wrong.
[18] Rogers v Legal Services Commission (1995) 64 SASR 572 at 596-597.
From the decisions to which I have referred I would draw the following general principles:
1The dismissal of an action which does not, on its face, disclose a justiciable controversy is interlocutory and does not result in a binding judgment which has the effect of res judicata.
2The dismissal of an action for failure to comply with the rules or orders of a court is interlocutory and does not involve a final determination of a controversy which constitutes res judicata.
3The dismissal of an action which raises a justiciable controversy but which, on the very facts pleaded, shows that the cause of action is untenable and cannot possibly succeed may be dismissed with effect as a final judgment.
There is, however, a substantial difference between circumstances such as those considered in General Steel and cases like this in which it is said that the pleaded facts fail to disclose a duty of care. In General Steel there was in effect an admission of facts on the pleadings which attracted s 125 of the Patents Act and authorised the very use which the plaintiff claimed was an infringement. In the case of an action alleging a common law duty of care, it is difficult to say, on the skeletal structure of the statement of claim, that the claim is ‘manifestly groundless’.
If the order made pursuant to DCR 193 is merely interlocutory, all that is lost, leaving aside the more difficult case of the dismissal occurring at a time when any new action is statute barred, is time and expense. Even then, of course caution is warranted before dismissing the claim. However, the need to be cautious before dismissing a statement of claim and proceedings is particularly acute if the dismissal will operate as a final order and support a plea of res judicata.
Summary judgment differs substantially from summary dismissal. The adjective ‘summary’ properly applies to the nature of the hearing which nonetheless results in a final judgment. For that reason, in the ordinary course, an application for summary judgment by a plaintiff or a defendant under DCR 232 will require an affidavit setting out the relevant facts on which the party seeking summary judgment relies.
DCR 232 contemplates that there will be sufficient material before the Court to determine whether or not there is a reasonable basis for the claim or defence. Given the summary proceedings envisaged by the rule, that material will be before the Court either by way of the affidavits of deponents, who are not required for cross-examination, or by agreed facts. If the critical facts are disputed then the matter should go to trial. Summary judgment given pursuant to DCR 232 is a final determination which supports res judicata.
The DCR 232 procedure is not suited to a question like that raised in these proceedings, as to whether a common law duty of care is owed in what is a novel category of duty, or a category which requires some extension of a category already recognised by the common law.
As Blue J observed in Proude v Visic (No 4):[19]
[105]It is not appropriate to compartmentalise the salient features of the relationship between the CFS and the landholders. It is necessarily a multi-faceted inquiry.
[106]At trial, it may be expected that detailed evidence will be led concerning the actions taken and directions given by the CFS and the interaction between the CFS and landholders at the scene of the fire. A three dimensional picture will emerge of the circumstances at and in the vicinity of the fire. It will then be possible to provide a proper and adequate answer to the multi-faceted inquiry which the High Court has said is required to determine the existence of a duty of care.
[107]At the present stage of the action, I have only the bare bones of the pleadings. The pleadings perform the function of defining Mr Proude’s and Mr Visic’s case at a level of generality, defining the issues and giving to the CFS notice of the case it has to meet for the purpose of trial. They necessarily provide a two dimensional picture without any of the resolution or depth of the picture which will emerge at trial.
[19] (2013) 117 SASR 560 at [105]-[107].
The distinction between summary dismissal and summary judgment is elided by s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA). Section 31A provides:
31A Summary judgment
(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.
(5) This section does not apply to criminal proceedings.
Rule 26.01(1) of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court for an order that judgment be given against another party because:
(a)the applicant has no reasonable prospect of successfully prosecuting a proceeding or part of the proceeding; or
(b)the proceeding is frivolous or vexatious; or
(c) no reasonable cause of action is disclosed; or
(d)the proceeding is an abuse of the process of the Court; or
(e)the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.
A note to r 26.01 refers to s 31A of the FCA. The inter-relationship between r 26.01 and s 31A is not clear to me. It suffices for present purposes to make the point that the basis provided for in s 31A to give judgment on the grounds that there is no reasonable prospect of successfully prosecuting or defending the action has no direct counterpart in our rules. Section 31A appears to amalgamate both the summary dismissal procedure of DCR 193 and the summary judgment procedure of DCR 232 but arguably has a wider operation than both combined.
There have been conflicting decisions on whether an order made pursuant to s 31A is interlocutory or not. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd,[20] the Full Court of the Federal Court considered an appeal against a judgment entered against the plaintiff pursuant to s 31A of the FCA. The plaintiff’s action concerned claims under the Trade Practices Act 1974 (Cth) (the Trade Practices Act). The trial Judge entered judgment on the grounds that on an application of s 51AC(9) of the Trade Practices Act, Jefferson Ford’s action was bound to fail.
[20] (2008) 167 FCR 372.
The Court unanimously agreed that the Judge had erred in his construction of s 51AC(9) of the Trade Practices Act. The order of the Judge was set aside because, on the way in which the claim was pleaded, it was not possible to sufficiently identify the particular conduct and circumstances of supply to determine whether the claim was excluded by s 51AC(9) of the Trade Practices Act.
Finkelstein and Gordon JJ held that, leaving aside the complication that the judgment did not dispose of all of the claims in the proceedings, the judgment was final. Finkelstein J, with whom on this question Gordon J agreed, reached the conclusion that a judgment given pursuant to s 31A of the FCA is final by analogy with applications for summary judgment under rules derived from the post‑Judicature Act English Rules.
On the other hand, Rares J held that an order made pursuant to s 31A of the FCA was interlocutory:[21]
[54]This test has been applied to determine that an order for summary judgment dismissing an application pursuant to Federal Court Rules, O 20, r 2 on the basis that it discloses no reasonable cause of action is interlocutory: see Dai v Telstra Corporation Ltd at [21] per Hill, Heerey and Hely JJ, applying Weatherall v Satellite Receiving Systems (Australia) Pty Ltd at [2]-[9] per Burchett J; Dai v Telecommunications Industry Ombudsman at [7]-[8] per Beaumont, Whitlam and Lehane JJ, applying Hall at 440. And in Lashansky v Bruvecchis Pty Ltd at [7]-[16], Madgwick, Lander and Crennan JJ applied Re Luck to hold that such an order under O 20, r 2 was interlocutory. In Berowra Holdings Pty Ltd v Gordon at [16] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, obiter, described a challenge to the strength of a party’s case by seeking to have it struck out for disclosing no reasonable cause of action, as being made at the interlocutory level.
[55]In Simundic v University of Newcastle at [12], [14] Allsop, Lander and Siopis JJ said, obiter, that an order under s 31A was interlocutory and leave was required to appeal from it. But in that case the Court found that it had no jurisdiction to hear the matter. In Zoia v Commonwealth Ombudsman Department at [19] Spender J with whom French J and Gilmour J agreed at [26] and [28] also said, obiter, that an order dismissing proceedings under s 31A was interlocutory. After this appeal was argued, French, Lindgren and Jacobson JJ held as one of two grounds for deciding that the application before them was interlocutory, that a decision under s 31A is interlocutory and requires leave to appeal: Pham v Secretary, Department of Employment and Workplace Relations at [2], [14]-[15].
…
[62]After all this long discussion, I am of opinion that an order under s 31A is an interlocutory order because it does not finally determine the rights of the parties. Rather, it determines that there is no reasonable prospect of either successfully defending or prosecuting a particular cause of action or pleaded case. In that respect the section broadens the Court’s power summarily to terminate proceedings without requiring it to proceed to a final adjudication on the merits of the case.
(Citations omitted)
[21] Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [54]-[55], [62].
In Luck v University of Southern Queensland (Luck), Rares J explained: [22]
[101]In my opinion, a judgment or order under s 31A(2) that determines that an applicant has no reasonable prospect of successfully prosecuting a proceeding is interlocutory. I have held that s 31A requires a prediction of the outcome of a trial on the merits and is not an actual adjudication of those merits: Jefferson Ford at [45]. I examined the nature of an order under s 31A in that judgment. I concluded that proceedings may still be dismissed or judgment given under s 31A on the ground that the claim or defence is hopeless or bound to fail, as well as on the express ground in the section that there is no reasonable prospect of successfully prosecuting or defending the proceeding.
(Citation omitted)
[22] (2009) 176 FCR 268 at [101].
I observe here that the construction given to s 31A of the FCA in Luck proceeds on the basis that the judgment is that the ‘applicant has no reasonable prospect’, and not a judgment giving the relief sought or determining that there is no entitlement to the relief sought. Put in another way, Rares J appears to construe s 31A of the FCA such that ‘no reasonable prospect’ is the final order made and not merely a necessary and sufficient pre‑condition for giving final judgment on the claim.
In Kowalski v MMAL Staff Superannuation Fund Pty Ltd, Spender, Graham and Gilmour JJ agreed with Rares J and said: [23]
[40]In our opinion, a case where summary judgment is given for a respondent in the absence of the full and complete factual matrix and full argument thereon, the Court being satisfied that the moving party has no reasonable prospect of successfully prosecuting the proceeding is no different from a case where an order is made dismissing an action because it is frivolous, vexatious, an abuse of the process of the Court or does not disclose a reasonable cause of action (see Re Luck) or one dismissing an appeal from an order of a Master refusing to set aside a default judgment (see Carr v FCA; Zoia v Commonwealth Ombudsman Department (Zoia) per Spender J, Gilmour J concurring, at [14] and [19] and per French J as his Honour then was at [26]).
We respectfully disagree with the views expressed by Finkelstein J in Jefferson Ford at [12] that “[i]n an application for summary judgment, the judge resolves the dispute on the merits”, and by Gordon J, by way of obiter dicta, at [164] that “an order granting summary judgment on all claims … is a final order because there are no further substantive rights in issue”.
What the judge does, when considering a summary judgment application, is make a determination, on the material then before the Court, as to the prospects of the moving party successfully prosecuting the proceeding. The legal effect of such a judgment is not final.
(Emphasis in original; citations omitted)
[23] (2009) 178 FCR 401 at [40].
I would respectfully emphasise that the principle stated in that paragraph is limited to cases in which ‘summary judgment is given for a respondent in the absence of the full and complete factual matrix and full argument thereon’.[24] A judgment given pursuant to s 31A of the FCA on agreed facts or undisputed affidavits after full argument may therefore, like a judgment given under DCR 232, be a final adjudication.
[24] Kowalski v MMAL Staff Superannuation FundPty Ltd (2009) 178 FCR 401 at [40].
I return to the approach which should govern the application of DCR 193 to a claim based on a novel duty of care in tort. In Spencer v Commonwealth,[25] the High Court recognised that summary processes must not be used to stultify the development of the law. French CJ and Gummow J make the observation:[26]
[25]… Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
[26]Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
(Citation omitted)
[25] (2010) 241 CLR 118.
[26] Spencer v Commonwealth (2010) 241 CLR 118 at [25]-[26].
The observations of French CJ and Gummow J on the possible qualification of existing authority are pertinent here because the imposition of a duty of care by the common law proceeds incrementally and by analogy from comparable relationships and by distinguishing those relationships which are different.
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
The common law of negligence must adapt to, and in the case of inconsistency, give way to, statutory powers and obligations.
In Graham Barclay Oysters Pty Ltd v Ryan (Graham Barclay Oysters), Gummow and Hayne JJ explained:[31]
[146]The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
[147]Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute. In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law…
…
[149]An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.
(Citations omitted)
[31] (2002) 211 CLR 540 at [146]-[147] and [149].
Applying the considerations identified in the last cited paragraph to the common law and statutory obligations of police officers can be problematic.
In Hill v Chief Constable of West Yorkshire (Hill),[32] the House of Lords held that the Chief Constable, whilst attempting to identify and apprehend a serial killer for offences already committed, was not under a contemporaneous duty to persons who may yet become victims before the killer is apprehended. The tendency of such a duty to compromise an investigation by encouraging precipitous, but mistaken, arrests is obvious enough.
[32] [1989] AC 53.
Nonetheless, in Hill, Lord Keith recognised that the law does not blanket all conduct engaged in by police with a blanket immunity:[33]
There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.
[33] [1989] AC 53 at 59.
Instances in England where the liability of police in negligence has been established are Knightley v Johns[34] and Rigby v Chief Constable of Northamptonshire.[35]
[34] [1982] 1 WLR 349
[35] [1985] 1 WLR 1242.
In Robinson v Chief Constable of West Yorkshire Police (Robinson),[36] Lord Reed (with whom Lady Hale P and Lord Hodge agreed) affirmed the following reasoning in Hill:[37]
By common law police officers owe to the general public a duty to enforce the criminal law: see Reg v Commissioner of Police of the Metropolis, Ex parte Blackburn. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public.
(Citation omitted)
Having affirmed that reasoning, in Robinson, Lord Reed stated:[38]
Hill’s case is not, therefore, authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. On the contrary, the liability of the police for negligence or other tortious conduct resulting in personal injury, where liability would arise under ordinary principles of the law of tort, was expressly confirmed. Lord Keith spoke of an “immunity”, meaning the absence of a duty of care, only in relation to the protection of the public from harm through the performance by the police of their function of investigating crime.
[36] [2018] AC 736.
[37] [1989] AC 53 at 59.
[38] [2018] AC 736 at [55].
In Australia, the proposition that the liability of police for causing personal injury does not differ from the liability which would be imposed on anyone else must be qualified by what was said in paragraph [149] of Graham Barclay Oysters, cited above.
In State of New South Wales v Tyszyk, Campbell JA succinctly stated the ratio of the decision in Hill in these terms:[39]
[123]It seems to me that the principle that Hill stands for is that, when there is a criminal at large who has demonstrated a propensity to commit crimes against a particular group of people, and that group of people is a large one, police owe no duty of care to persons who might become a victim of that criminal, concerning the strategies adopted and resources to be employed in seeking to identify and arrest that criminal.
[39] [2008] NSWCA 107 at [123].
Campbell JA then adverted to a wider principle, of which the decision in Hill was an instance, as follows:[40]
[125]Partly on the basis of Hill, a wider principle than Hill itself articulated has been accepted both in the House of Lords and in the High Court of Australia. It is that a “common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties”. The High Court also said, in Sullivan v Moody at [60]:
“… when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of the specified class of persons, the law would not ordinarily subject them to a duty to have regards to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”
[126]The approval given to Hill … in Sullivan v Moody at [57] was in a context where their Honours were considering the way in which the need for coherence in the law affected whether a duty of care would be held to be owed by a particular defendant to a particular plaintiff. They said, at [55]:
“A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.”
(Emphasis in original; citations omitted)
[40] State of New South Wales v Tyszyk [2008] NSWCA 107 at [125]-[126].
Exceptional cases in which police have been found liable, or arguably liable, in negligence include:
·to other road users when driving in performance of police duties;
·to suspects, who have been shot in the course of pursuit or arrest;
·with respect to persons in detention;
·failing to assist another officer for whose safety he had a responsibility;
·provoking or acting in disregard of a real and substantial risk of harm to a person or property;
·failing to preserve the confidentiality of information provided by an informant;
·failing to protect a woman who was unaware she was being used by police as ‘bait’ to catch a serial rapist; and
·delaying in responding to calls for assistance while assuring the victim that help was on its way.[41]
[41] Identified by Finn J in Rush v Commissioner of Police (2006) 150 FCR 165, and by Brooking J in Zalewski v Turcarolo [1995] 2 VR 562.
On the other hand, categories where no duty had been found include:
·where police are investigating a crime and the offender, then known or unknown, harms the plaintiff;
·where police in the course of investigation injure the person under investigation; and
·where police in the course of investigation injure the person under investigation and a family member of the person under investigation suffers indirect injury.
In Tame v New South Wales (Tame),[42] the High Court considered an appeal against the dismissal of an action for psychiatric injury brought by the driver of a car, Mrs Tame, who, in the course of civil litigation over the accident, was provided with a police report claiming that at the time she had a high blood alcohol reading, when in fact it was nil. The mistake was quickly corrected and her civil claim was not affected. Judgment was given in Mrs Tame’s favour at trial. The High Court affirmed the decision of the Court of Appeal setting that judgment aside. The Court held that the nature of both the harm and the function in which the police were engaged militated against the imposition of a duty of care.
[42] (2002) 211 CLR 317.
The report which was mistakenly completed was described by McHugh J as follows:[43]
[83]Police officers use P4 reports to record the details of accidents, including the particulars of the drivers involved. Because Constable Morgan did not have the results of the blood samples when he compiled the P4 report, he left blank the sections of the report that related to them. A month after the accident, an Acting Sergeant Beardsley purported to enter the sample results, but his entry erroneously stated that Mrs Tame had a blood sample result of 0.14. In fact, her blood-testing certificate showed that she had no alcohol in her blood. By late March 1991, he had discovered the error and corrected the original report. However, on 15 April 1991, NZI received an uncorrected copy of the P4 report showing Mrs Tame as having a blood alcohol reading of 0.14.
[43] Tame v New South Wales (2002) 211 CLR 317 at [83].
Gleeson CJ first emphasised the distinction between duties to avoid physical injury on the one hand, and financial or psychiatric harm on the other:[44]
[6] One of the reasons for the rejection of a general rule that one person owes to another a duty to take care not to cause reasonably foreseeable financial harm is that the practical consequence of such a rule would be to impose an intolerable burden upon business and private activity. Furthermore, such a rule would interfere with freedoms, controls and limitations established by common law and statute in various contexts. Unscientific as may be the distinction between “pure” economic loss, “parasitic” economic loss, and damage to property, the care which the law requires people to show for the person or property of others is not matched by a corresponding requirement to have regard to their financial interests. The distinction is not based on science or logic; it is pragmatic, and none the worse for that.
[44] Tame v New South Wales (2002) 211 CLR 317 at [6].
Gleeson CJ held that the police officer who misreported Mrs Tame’s blood alcohol level was not under a duty of care, both because her psychiatric injury was not reasonably foreseeable and because the imposition of the duty would compromise the officer’s primary duties. As to the latter reason, Gleeson CJ explained:[45]
[25] In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary course, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident. The two people involved were Mr Lavender and Mrs Tame. Copies of the report would also be available, on request, and for a fee, to third parties, such as litigants, their solicitors and insurers. Primarily, however, this was an official police report of the incident, and of the result of police observations, inquiries and tests.
[26] The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.
[27] Not only was there no such relationship between Acting Sergeant Beardsley and Mrs Tame as would make it reasonable to require that he should act in contemplation of the danger of psychiatric injury to her; the relationship between them was inconsistent with such a requirement.
(Citations omitted)
[45] Tame v New South Wales (2002) 211 CLR 317 at [25]-[27].
Gaudron J held that there were no special features of the relationship between the police and Mrs Tame which attracted a duty of care to guard against causing psychiatric injury, but also expressed concern that the law of negligence not outflank defamation law, and held that the imposition of the duty was incompatible with the duties owed by police to the public:[46]
[57]… The first is that it is to be assumed that the exercise upon which Acting Sergeant Beardsley was engaged was the investigation of the question whether either Mrs Tame or the driver of the other vehicle involved in the accident which led to the making of the traffic accident report had committed a traffic offence. It would be incongruous and, perhaps, give rise to incompatible duties if a person charged with the investigation of a possible offence were to owe a duty of care to the person whose conduct is the subject of that investigation.
(Citations omitted)
[46] Tame v New South Wales (2002) 211 CLR 317 at [57].
McHugh J held that there was no relevant duty of care because a police officer reporting on a motor vehicle accident could not reasonably foresee that a person in Mrs Tame’s position would suffer psychiatric injury from being wrongly told she had a high blood alcohol level.
McHugh J went on to consider whether the duty was precluded because it would subject the police officer to conflicting obligations which would be relevant to the performance of his duties as a police officer. McHugh J said:[47]
[124] In the present case, Constable Morgan and Acting Sergeant Beardsley had a duty to prepare the P4 report for purposes relevant to the administration of justice. If other considerations pointed to a duty of care, it might be thought that nothing about preparing a P4 report was of sufficient public importance to negate that duty of care. But it would be a mistake to treat the preparation of a P4 report in isolation from other recording duties imposed on police officers in investigating criminal activity.
[125]Police officers are frequently obliged to record and use statements from witnesses and informants, statements that frequently damage the reputation of others. It seems preposterous to suggest that an officer has a duty of care in respect of such statements. Gathering and recording intelligence concerning the activities, potential activities and character of members of the criminal class is also central to the efficient functioning of a modern police force. Recording hearsay, opinions, gossip, suspicions and speculations as well as incontestable factual material is a vital aspect of police intelligence gathering. To impose a duty to take reasonable care to see that such information, recorded by police officers, is correct would impose on them either an intolerable burden or a meaningless ritual. It would often — perhaps usually — defeat the whole purpose of intelligence recording if the officer were required to check the accuracy of the material recorded. Often enough, checking the accuracy of the material would require contacting the very person who was the subject of an adverse recording.
[126] It is unnecessary to decide in this case whether the administrative obligations of Constable Morgan and Acting Sergeant Beardsley negated the existence of a duty of care. My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. If material is recorded honestly but carelessly, no action for defamation will lie, and I see no reason why the law of negligence should alter that balance.
[47] Tame v New South Wales (2002) 211 CLR 317 at [124]-[126].
I make the following observations about the last cited paragraphs. First, I note that paragraphs [124]-[125] are primarily directed at ensuring coherence between the law of defamation and the law of negligence; liability in negligence should not outflank the defences available to a police officer under the law of defamation for making reports of the kind described in paragraph [125].
Secondly, I accept that the discussion in paragraph [126] goes further and extends beyond the issue of coherence, and considers whether it is inconsistent with the very duties of police to impose a duty of care to those persons whose activities they monitor, investigate and report on. The ‘administrative obligations’ mentioned in the first sentence of paragraph [126] is probably a reference to completing the P4 form, but the point which is made is that the imposition of a duty of care on that clerical function cannot be considered in isolation from the effect it would have on the wider investigative duties of police. The completion of a P4 report was an integral part of the police investigation of the accident and was an exercise which fell within the ordinary scope of the public duty of police to investigate and report on the commission of offences.
Gummow and Kirby JJ held that Acting Sergeant Beardsley did not owe Mrs Tame a duty to avoid causing her psychiatric injury because he could not have foreseen that carelessly completing his report would cause such an injury. The risk of a reaction as extreme and idiosyncratic as Mrs Tame’s was far‑fetched and fanciful.[48] On the inconsistency between the proposed duty of care and the obligations of a police officer, their Honours observed: [49]
[231] It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question. Counsel for Mrs Tame submitted that Mrs Tame's conduct was not under investigation at the time the Traffic Collision Report was completed. It was said that Mrs Tame was an accident victim in respect of whom there was no suspicion of any criminal offence. However, it is unnecessary to pursue that question, because, for the reasons that follow, Mrs Tame's action fails at the outset.
(Citations omitted)
[48] Tame v New South Wales (2002) 211 CLR 317 at [232]-[233].
[49] Tame v New South Wales (2002) 211 CLR 317 at [231].
Hayne J held both that Mrs Tame’s psychiatric injury was not foreseeable, and that it would constrain the proper performance of the other duties of police officers to impose a duty of care.
Callinan J also dismissed the appeal because the head injuries suffered by Mrs Tame were not foreseeable. Without deciding whether the postulated duty of care was inconsistent with the administrative scheme in which the police officer was engaged, his Honour observed:[50]
[336] In Sullivan, reference was made to the statutory scheme which the defendants there were implementing, a scheme relevantly for the protection of children. The administrative scheme here has a number of purposes: to provide statistical information with a view, presumably, to exploring means for the prevention of accidents; to facilitate the investigation of accidents; to assist in the bringing of criminal or quasi-criminal proceedings in respect of them; and, perhaps other administrative purposes. There is a question here of the kind which was answered in the negative in Sullivan: whether the lawful administrative purposes of the scheme and its implementation are reconcilable with the imposition of a duty not to cause psychiatric injury to persons the subject of a relevant report. The other reasons which I have given for the denial of this appeal make it unnecessary to pursue that question here.
(Citation omitted)
[50] Tame v New South Wales (2002) 211 CLR 317 at [336].
The ratio of the decision in Tame may not strictly extend to the preclusion of a duty of care because of its incompatibility with the public duty of the police but this Court must apply what was said on that question. The observations made by their Honours in Tame require a close consideration of the way in which the postulated duty of care affects, compromises or detracts from any identified policing duty owed to the public.
In Cran v State of New South Wales,[51] the Court of Appeal of New South Wales upheld the dismissal, at trial, of a negligence claim brought against police for failing to expedite, in accordance with their own protocol, and in disregard of a Magistrate’s direction, the testing of substances suspected to be drugs for which the plaintiff had been arrested. The substance was eventually found not to be a prescribed substance, but the plaintiff had been remanded in custody for some weeks longer than he would otherwise have been if the protocol had been followed. The omission of the police was a clerical one, described by the Court of Appeal as a ‘ministerial task’, of not filling in those parts of a standard form which would have alerted the forensic science centre that the plaintiff was in custody and that the matter fell within the expedition protocol.
[51] (2004) 62 NSWLR 95.
Although the error was clerical, the conduct was clearly a step in the investigation of an offence. A duty of care cannot be imposed on some particular investigative acts without affecting others, particularly where there is a competition for resources, the allocation of which might be skewed away from crime detection and offender apprehension in order to guard against negligence claims. The Court of Appeal upheld the dismissal of the claim, despite its manifest disquiet with the result which left the plaintiff without redress in the face of such manifest carelessness.
In Halech v State of South Australia (Halech),[52] this Court considered a claim by a son whose mother was one of the four occupants of a vehicle involved in a fatal accident. The police officers who attended the accident negligently misidentified two occupants of the vehicle. Duggan J identified the function of police at the scene of the accident as being ‘tentative identification [of the victims] in circumstances in which it [was] expected that a more formal identification [would] take place subsequently.’[53] Duggan J continued:[54]
[42] … In these circumstances the police officers are entitled to expect, as they did in the present case, that reliable identification by relatives or friends would take place in due course. They could not reasonably have been expected to foresee that the recording of this information, if incorrect, would have misled all those subsequently involved in the identification, resulting ultimately in psychiatric injury to one of the relatives.
[52] (2006) 93 SASR 427.
[53] Halech v State of South Australia (2006) 93 SASR 427 at [41].
[54] Halech v State of South Australia (2006) 93 SASR 427 at [42].
Besanko J held that ‘it would constrain the proper performance of those duties to impose a duty of care on a police officer in relation to the identification of a victim to the relatives of that victim.’[55]
[55] Halech v State of South Australia (2006) 93 SASR 427 at [110].
In Halech, even though the identification function did not include the exercise of a police power, the imposition of a duty of care would directly affect the performance of other duties by police officers attending accident scenes.
In Fuller-Wilson, the Court of Appeal of New South Wales allowed an appeal against the summary dismissal of the plaintiffs’ statement of claim.
The plaintiffs claimed to have suffered psychological injury as a consequence of discovering body parts of a deceased relative at an accident scene involving the collision of two large trucks. The plaintiffs alleged that police officers were negligent in failing to remove the remains from the accident site, and in failing to warn them that the remains might still be at the scene.
Basten JA accepted that whether or not the police were performing coronial duties, or carrying out a police investigation of the accident, or simply removing the body of the deceased to an appropriate location, the activity was carried out in the performance of public responsibilities and not for the protection of any individual or class of individuals. The plaintiffs were therefore required to show that there was an implied statutory purpose of protecting individuals, including a class involving relatives of the deceased. Basten JA continued:[56]
[38] There is no clear legal basis for inferring such a purpose in the case of powers derived from the common law functions of a constable. It is not possible to identify with precision the scope of the duties of a constable under the general law, as adopted by s 14 of the Police Act. The conduct of police is now dealt with in extensive directions and guidelines, including those contained in the New South Wales Police Handbook. The attention of the law is generally engaged where an officer seeks to exercise a power which interferes with the rights and freedoms of individual members of the public. As in other areas of activity, statutory immunities from suit are generally construed as limited to activities which require special legal authority. Relevantly for the present case, the New South Wales Police Handbook contains a section dealing with deceased persons, which includes instructions as to notification of the next of kin. No reliance was placed on such material by the parties; it plays no part in the current proceeding. It does, however, indicate the potential scope of the functions of police officers under s 6 of the Police Act.
(Citations omitted)
[56] Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [38].
Basten AJ considered the significance of an assumption of responsibility in attracting a duty of care:[57]
[39] Some cases speak of “assumption of responsibility” as a basis for imposing a duty of care. Thus Lord Reed stated recently in Robinson v Chief Constable of West Yorkshire Police:
“[69] The absence of a duty towards victims of crime, for example, does not depend merely on a policy devised by a recent generation of judges in relation to policing; it is based on the application of a general and long-established principle that the common law imposes no liability to protect persons against harm caused by third parties, in the absence of a recognised exception such as a voluntary assumption of responsibility.”
[40] Broadly speaking, the “recognised exception” means that a duty of care may arise where an officer has made a representation to an individual, who has placed reliance on the representation. The suggestion that police may create a duty of care by engaging with individual members of the public is fraught with difficulty. In Michael v Chief Constable of South Wales Police Lord Toulson noted that “[t]here has sometimes been a tendency for courts to use the expression ‘assumption of responsibility’ when in truth the responsibility has been imposed by the court rather than assumed by [the defendant].” Such cases may better be understood by an analysis of the purpose for which particular conduct has been undertaken.
(Citations omitted)
[57] Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [39]-[40].
Basten JA concluded:[58]
[80]Although the weight of authority at the intermediate court level is against the duty for which the appellants contend, there is a point of possible uncertainty in High Court authority which would warrant permitting them to run their case at a trial. Their contention depends on the correct reading of the passage in Sullivan v Moody dealing with claims against public authorities or their officers. It was expressed in what appears to be a final statement of principle in the following terms:
[60] … Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.
[81]There may be a level of uncertainty as to the standard envisaged by the phrase ‘conflicting claims or obligations.’ The language appears to be consistent with that used in the first part of the paragraph, dealing with a duty of care owed by an individual, such as a medical practitioner. The Court said that a duty giving rise to ‘inconsistent obligations’ would ordinarily be denied.
[82]Although the Court had earlier referred to the language of Lord Browne‑Wilkinson in X (Minors) v Bedfordshire County Council, using, as an alternative to inconsistent obligations, a ‘tendency to discourage’, it is at least arguable that the statement set out above was deliberate in not repeating the language of ‘tendency to discourage’.
[83]Further, the insistence in Graham Barclay Oysters that the existence or otherwise of a duty of care will turn upon ‘a close examination of the terms, scope and purpose of the relevant statutory regime’ suggests that a claim should not be summarily dismissed until it can be said that: (a) the particular statutory regime has been properly identified; and (b) an affirmative finding of conflicting claims or obligations has been made. It has not yet been possible to carry out that task in the present case.
(Citations omitted)
[58] Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [80]-[83].
Analysis
Applicants for employment comprise a substantial proportion of those who request a police clearance. As a class, their capacity to protect themselves from negligent misstatement in the certificates is limited. Employers may insist on the certificate being sent directly to them, both in the interests of timeliness and to protect against fraud. Even if an applicant is able to arrange to receive the certificate first, the time it takes to correct a mistake may deny him or her any real prospect of winning the position. The harm an applicant will suffer in losing employment is as obvious and probable as it is significant. These circumstances strongly support the imposition of a duty of care.
The SAPOL Commissioner has not identified any statutory or common law public duty pursuant to which he cooperates in what appears to be a national scheme for the provision of police certificates. From the broad outline of the pleading, I proceed on the basis that the scheme is funded by the fees charged for provision of the certificate, from direct government funding, or a mixture of both. Accordingly, rules of preclusion based on conflicting duties, resource allocation or incoherence are not obviously determinative.
I accept that that the scheme provides a useful, and very important, service to the public. It can be accepted that the desirability of the service motivated the establishment of the scheme. However, it is another question altogether whether the scheme for the provision of police certificates for employment purposes has become integrated with the statutory crime detection and public safety duties of police.
The duties of police officers are evident from the statement of the ‘purpose of police’ in s 5 of the Police Act 1998 (SA):
5—Purpose of police
The purpose of SA Police is to reassure and protect the community in relation to crime and disorder by the provision of services to—
(a) uphold the law; and
(b) preserve the peace; and
(c) prevent crime; and
(d) assist the public in emergency situations; and
(e) co-ordinate and manage responses to emergencies; and
(f) regulate road use and prevent vehicle collisions.[59]
[59] See also the police oath in Schedule 3 of the Police Regulations 2014 (SA).
The primary duties which precluded the imposition of a duty of care in Halech are expressly imposed in subparagraphs (d) and (e). It is not as obvious that the provision of police clearances falls within subparagraph (c).
It can be noted here that in circumstances in which the function of providing police clearances is critically important, the legislature may, and has, established a statutory scheme which imposes duties and confers immunities in accordance with the interests it wishes to protect. The screening procedures for persons fostering or working with children is an example.[60]
[60] See Part 2, Division 3 of the Children’s Protection Act 1993 (SA); Part 3, Division 1 of the Children’s Protection Regulations 2010 (SA), and the decision of this Court in L & Anor v State of South Australia; H-P v State of South Australia (2017) 129 SASR 180.
I accept that the interests of applicants for employment, their prospective employers, and the other employees and customers or clients of the prospective employer, may differ. Insofar as a police certificate may contain judgments based on police intelligence, their conflicting interests may negate a duty to any of them. However, Mr Jennings’ claim is limited to the report of his conviction. The orders of courts are expressed in clear terms and records of those orders are maintained in their registries. No matters of degree or exercises of fine judgment are involved in reading and reporting on them.
I acknowledge the underlying difficulty of the SAPOL Commissioner. The police database has historically been maintained for policing purposes. Offending histories can help police in many ways including the identification of suspects, knowing who the likely associates of offenders are, and providing intelligence on whether a person poses a risk to police or the public which warrants surveillance or monitoring. In that aspect of its use it is intrinsically connected to police investigations, and the resources the police allocate to its maintenance must be considered in the context of all of its operations. On the other hand, the database may be used to prepare offender histories for sentencing by courts or to record outstanding arrest warrants. In that aspect of its use it is arguable that police operational requirements are not reason enough to deny a duty of care.
Be that as it may, 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. Whatever care may or may not have been taken in maintaining the database, on the request for a certificate, further checks can be taken if it is prudent to do so. Nothing has been put to suggest that a fee cannot be charged to cover the resources involved. Moreover, if there is public utility in the service, it may be the subject of government funding. If, and there is no pleading or material one way or another on this question before the Court, the scheme is funded separately from the general police funding line, competition for resources may not be determinative.
Be that as it may, 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.
Conclusion
I would allow the appeal. I would quash the summary judgment entered against Mr Jennings, but I would strike out the Statement of Claim with permission to refile. I would hear the parties on the time which should be allowed.
STANLEY J: I would allow the appeal. I agree with the orders proposed by the Chief Justice and with his reasons.
PARKER J: I would allow the appeal. I agree with the reasons of the Chief Justice and the orders he proposes.
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