Jennings v Police

[2018] SASCFC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

JENNINGS v POLICE

[2018] SASCFC 99

Judgment of The Full Court

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

20 September 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES

Application for permission to appeal to the Full Court against a judgment of a Judge of the District Court, overturning a judgment of a Master of the District Court dismissing the South Australia Commissioner of Police’s (the Commissioner) summary judgment application, and finding that no duty of care in the circumstances.

The appellant obtained employment with a mining firm after completing a job application which required him to disclose prior convictions through the provision of a National Police Certificate (Certificate) as issued by the Australian Federal Police through advice given by other police forces. The Certificate included two offences, one of which had been misstated and subsequently expunged. The appellant brought an action claiming damages for the loss of his employment by reason of the negligent misstatement of the Commissioner.

Held, per Kourakis CJ (Blue and Stanley JJ agreeing), granting permission to appeal:

1.  Whether or not the Commissioner owes a duty of care in issuing, or providing, information for the issue of a Certificate is a matter of general public importance.

Spent Convictions Act 2009 (SA) s 8A, s 13, referred to.

JENNINGS v POLICE
[2018] SASCFC 99

Full Court:       Kourakis CJ, Blue and Stanley JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court against a judgment of Judge Soulio in the District Court giving summary judgment for the defendant, the South Australian Commissioner of Police (the Commissioner).  Judge Soulio’s judgment reversed a judgment of Master Keith who had dismissed the Commissioner’s summary judgment application.   We would grant permission for the reasons which follow.

2. The plaintiff, Mr Jennings, obtained employment with a mining firm after completing a job application which required him to disclose his prior convictions.  To verify his disclosure the employer required Mr Jennings to submit a National Police Certificate (the Certificate) which is issued by the AFP on advice received from other police forces. The Certificate included a South Australian 1978 offence of ‘unlawful sexual intercourse with a person under 12’ and a 2011 offence of driving with the prescribed concentration of alcohol.  In fact, the former offence was one of engaging in unlawful sexual intercourse with a person under the age of consent but over the age of 12.  Moreover, that conviction was subsequently expunged pursuant to the Spent Convictions Act 2009 (SA). The latter offence was correctly stated but had not been disclosed by Mr Jennings. Mr Jennings’ employment was terminated for not disclosing the offences.

3. Mr Jennings brought an action claiming damages for the loss of his employment by reason of the negligent misstatement of the Commissioner.

4. Whether or not the Commissioner owes a duty of care in issuing, or providing, information for the issue of a Certificate is a matter of general public importance.   It is arguable that the provision of a Certificate to a third party, like a prospective employer, on the application of a person who pays a fee should be distinguished from general policing duties and functions which are undertaken on behalf of the community and subject to a public duty which is inconsistent with the existence of multiple duties to diverse individuals. 

5. Moreover, it is arguable that summary judgment should not have been given on the pleadings. 

6. Permission to appeal is granted.