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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- Case
- [2019] SASCFC 93
- Decision Date
CaseChat Overview and Summary
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.
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