Malaspina v State of Victoria
[2024] VSC 338
•20 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 04004
| DAVID MALASPINA & ORS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 May 2024 |
DATE OF RULING: | 20 June 2024 |
CASE MAY BE CITED AS: | Malaspina & Ors v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2024] VSC 338 |
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PRACTICE AND PROCEDURE — Application for summary dismissal — Existence of novel duty of care — Alleged duty of police officers to prevent terrorist attack — Insufficient material facts pleaded to establish existence of duty — Civil Procedure Act 2010 (Vic) s 63 — NSW v Spearpoint [2009] NSWCA 233 — Hill v Chief Constable of West Yorkshire [1989] AC 53 — Dorset Yacht Co Ltd v Home Office [1970] AC 1004 — Smith v State of Victoria (2018) 56 VR 332 — Matthews v SPI Electricity Pty Ltd (No 2) (2011) 34 VR 584 — Plaintiffs’ pleadings inadequate to determine application — Plaintiffs’ pleadings struck out — Plaintiffs granted leave to replead.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | T Tobin SC | Slater & Gordon Lawyers |
| For the Defendant | L Brown SC with D McCredden | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
On 9 November 2018, Hassan Khalif Shire Ali (‘Hassan’) attacked and killed Sisto Malaspina (‘Malaspina’) and injured the fourth and seventh plaintiffs (‘attack’). The remaining plaintiffs are immediate family members of the primary victims who allege they suffered psychiatric injury upon becoming aware of the attack.
The plaintiffs allege the attack constituted a terrorist attack as defined in the Terrorism (Community Protection) Act 2002 (Vic) (‘TCPA’). They allege that between July 2015 and 9 November 2018, officers of Victoria Police were continuously monitoring, assessing and managing the terrorism risk that Hassan posed to members of the public, and that it was reasonably foreseeable to those officers that he would carry out a terrorist attack against those in physical proximity to him. The plaintiffs allege that Victoria Police officers breached a duty owed to them in the monitoring, assessment and management of the terrorist attack risk that Hassan posed, and claim damages for the injuries they allegedly sustained as a result of the attack.
The plaintiffs bring their claim under s 74(1) of the Victoria Police Act 2013 (Vic), which renders the State liable for a tort committed by a police officer in the performance or purported performance of the officer’s duties.[1] Separate proceedings were initially commenced for each of the first to sixth plaintiffs in the County Court of Victoria. By agreement, the separate proceedings were consolidated into one proceeding which was then transferred to this court.
[1]Victoria Police Act 2013 (Vic) s 72.
At the hearing before me on 16 May 2024, the plaintiffs applied to join Shadi Helal as a seventh plaintiff to the proceeding and to file a further amended writ and amended consolidated statement of claim (‘ACSC’). The defendant consented to both applications and I made orders to that effect on 20 May 2024.
The defendant now applies under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) for summary judgment in its favour, on the ground that the plaintiffs’ claims have no real prospect of success because they will be unable to establish the existence of the alleged duty of care. The amendments to the plaintiffs’ writ and statement of claim do not have a material impact on the defendant’s summary dismissal application.
Background
I proceed, for the purposes of the defendant’s application, by assuming that the plaintiffs will establish at trial the material facts pleaded in the ACSC. The following pleaded factual matrix is the basis for the allegations of duty of care.[2]
[2]Smith v State of Victoria (2018) 56 VR 332, 334 [5] (John Dixon J) (‘Smith’).
In July 2015, Hassan attempted to travel to Somalia to join the Islamic State of Iraq and Syria (ISIS). From that time until he committed the attack on 9 November 2018 Victoria Police officers continuously monitored, assessed and managed the risk that Hassan posed to the public. That monitoring and surveillance was done through the following operations, teams or units:
(a) the Joint Counter Terrorism Team (‘JCTT’), a multi-agency taskforce comprising members of the Australian Federal Police, Australian Security Intelligence Organisation (‘ASIO’) and State police agencies including Victoria Police. The JCCT is responsible for investigating criminal terrorism offences and disrupting potential domestic terrorist threats or attacks;
(b) the Counter Terrorism Command (‘CTC’) within Victoria Police which is responsible, among other things, for protecting the State of Victoria against threats of terrorism with a focus on prevention, protection and disruption;
(c) the Security Intelligence Unit (‘SIU’) of Victoria Police which is the main collector of counter terrorism intelligence in Victoria. The SIU is responsible for monitoring, assessing and managing individuals who exhibit relevant behaviours, referring those individuals to the JCTT for criminal investigation, and disseminating intelligence and advice in order to prevent acts or threats of terrorism; and
(d) the Countering Violent Extremism Unit (‘CVE’) of Victoria Police, which is responsible for providing intervention services and diversionary programs for persons at risk of radicalisation towards violent extremism.
In July 2015, Hassan was designated a ‘national security person of interest’ and prevented on security grounds from leaving Australia to travel to Somalia. From this point until 9 November 2018, Hassan was ranked at the ‘highest level of concern’ which indicated ‘criminal activity with potential for terrorist attack’. In August 2015, the SIU assessed Hassan as being at a ‘high risk of engaging in political violence’. By December 2015, the SIU had developed a ‘person of interest’ profile of Hassan.
In January 2016, ASIO asked the SIU to restrict its monitoring of Hassan to ‘desktop’ activities. This precluded direct engagement with and physical surveillance of Hassan.
In May 2016, the JCTT commenced ‘Operation San Jose’. The primary target of the operation was Hassan’s brother. Hassan was considered a ‘peripheral person of interest’ to the operation.
In 2016 and 2017, Hassan had interactions with general duty police relating to driving offences and possession of illicit drugs. By 5 September 2017, there were three outstanding warrants for Hassan’s arrest relating to his failure to attend court for some of the driving offences. A law enforcement assistance program (‘LEAP’) notification attached to the warrants directed executing officers to contact the SIU upon arrest. Hassan was arrested on one of the warrants on 9 September 2017 and was released on bail to appear at court on 5 February 2018.
Later in September 2017, Hassan was intercepted in his vehicle by Victoria Police’s Operations Response Team. Police identified and surreptitiously photographed papers in Hassan’s vehicle with references to ‘divine destinies’ and ‘slaughtering’. The SIU’s interpose record was updated with this information in early October 2017. Later in October, a CVE officer sought SIU advice about whether Hassan could be engaged in a diversion program. No action was taken in relation to that enquiry at the time because Operation San Jose had not yet concluded. In November 2017, a search warrant was executed at Hassan’s home as part of the resolution phase of Operation San Jose.
Throughout 2018, the SIU continued to take steps in the management and assessment of Hassan. In about June 2018, the SIU planned its involvement in the execution of the outstanding warrants for Hassan’s arrest on driving and drug charges as part of a ‘disruption’ strategy. However, that strategy could not be implemented because of ASIO’s request for ‘passive’ monitoring of Hassan.
In August and September 2018 Hassan was involved in, or suspected of being involved in, the following incidents:
(a) an altercation on 2 August 2018 where he allegedly produced a baseball bat;
(b) engaging in ‘stalking and paranoid’ behaviours, which included pursuing a woman to her home on 12 September 2018 and expressing beliefs that she had been following him;
(c) an alleged assault on 13 September 2018 where he allegedly produced a sledgehammer; and
(d) an altercation on 21 September 2018 where he allegedly produced a hammer.
The SIU considered the second incident to be indicative of drug use and/or mental health issues, and that this presented an opportunity to engage Hassan in a diversion program.
On 15 August 2018, ASIO informed the SIU that there were no longer any restrictions on its investigation of Hassan. That advice was repeated on 2 October 2018.
On 12 October 2018, Hassan was allegedly involved in a hit-and-run driving incident. On the same day, Hassan was intercepted by Victoria Police highway patrol officers for driving an unregistered motor vehicle and travelling in excess of the speed limit. Hassan was bailed roadside by a Victoria Police sergeant. It is not clear what charges the bail related to. The officers did not obtain Hassan’s correct address or notify the SIU that he had been located. No search was conducted of Hassan’s vehicle because it was concluded there were no grounds to do so.
On 18 October 2018, an SIU officer reviewed a report arising from the highway patrol interception and noted intelligence gaps including Hassan’s current address and mobile numbers. The SIU officer requested further information. Later in October, the SIU took steps to identify Hassan’s current address including enquiring with the Residential Tenancy Board Authority and Centrelink, and conducting ‘drive overs’ and an airwing fly over of addresses associated with Hassan. On 1 November 2018, the SIU received advice from a partner agency about Hassan’s current residential address and confirmed it with a ‘drive over’ on the same day.
On 2 November 2018, the SIU:
(a) added a LEAP warning to Hassan’s profile to alert police officers that he may be violent and carrying a weapon;
(b) directly warned officers at three police stations who had identified or sought to arrest and interview Hassan in relation to offences that allegedly occurred between August and October 2018, and at stations proximate to Hassan’s current address; and
(c) requested that those officers close to Hassan’s address coordinate his arrest and interview so that SIU officers could discuss national security matters with him.
On 3 November 2018, Hassan was allegedly involved in a verbal altercation with two strangers that involved him kicking and damaging a bystander’s vehicle.
On 5 November 2018, the SIU began to monitor data of Hassan’s incoming and outgoing phone calls and messages.
On 5 November 2018, Hassan purchased four propane gas cannisters and three liquid petroleum gas bottles. The plaintiffs’ pleadings do not contain any further details of the purchase or explain what role, if any, the gas bottles played in the attack.
On 7 November 2018, police officers from one of the stations contacted by the SIU on 2 November 2018 developed a plan to arrest Hassan on 10 November 2018. They did not advise the SIU of the plan at the time.
The ACSC contains almost no detail of the attack. The plaintiffs plead that Malaspina was ‘fatally attacked’ by Hassan without giving any further detail. I infer that the attack occurred in Bourke Street, Melbourne though this is not expressly pleaded. It is not pleaded where the first plaintiff, Malaspina’s son, was at the time of the attack or the circumstances in which he learnt of the attack. It is alleged that the second plaintiff, Malaspina’s wife, ‘was near Bourke Street, Melbourne’ when she learnt of the attack. No further detail is given. Similar comments can be made about the third plaintiff, Malaspina’s sister, who was ‘at her home’ when she learned of the attack.
The plaintiffs plead that the fourth plaintiff was on Bourke Street when he was injured in the attack. The fifth plaintiff, who is the fourth plaintiff’s wife, was with him at the time.
The seventh plaintiff was also on Bourke Street when he was injured by Hassan during the attack. The sixth plaintiff is the mother of the seventh plaintiff. The ACSC provides no details of when or how she became aware of the attack.
Submissions
Defendant
A court may give summary judgment for a defendant in a proceeding if satisfied that a claim, or part of a claim, has ‘no real prospect of success’.[3] The question is whether the respondent to an application for summary judgment has a ‘real’ and not ‘fanciful’ chance of success.[4] The power to award summary judgment should be exercised with caution and consistently with the overarching purpose of the CPA to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[5]
[3]Civil Procedure Act 2010 (Vic) s 63(1) (‘CPA’).
[4]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29], 40 [35] (Warren CJ and Nettle JA) (‘Lysaght’).
[5]CPA (n 3) ss 7-9; Lysaght (n 4) 42 [42] (Neave JA); Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd (2011) 35 VR 1, 5-6 [11] (John Dixon J); Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2012] VSC 163, [10] (Bell J).
The duty of care alleged in this case is novel. There is no Australian case in which a police officer engaged in crime prevention functions, such as intelligence gathering, has been held to owe a duty of care to protect members of the general public from harm inflicted by the criminal conduct of a third party.
In these circumstances the court must consider the reasonable foreseeability of a risk of injury to the plaintiff and the ‘salient’ features of the relationship between the plaintiff and defendant.[6] The salient features approach requires an analysis of the facts in each case and a comparison by analogy to previous cases in which a duty has either been found or rejected, to determine whether the relationship between a plaintiff (or class of plaintiffs) and a defendant has ‘the requisite closeness, control and vulnerability’ to warrant the imposition of a duty of care.[7] It also directs attention to the question of whether a duty should be imposed having regard to normative considerations including coherence in the law, avoidance of conflicting duties, and specific policy considerations arising out of a defendant’s conduct.[8]
[6]Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 371 [20] (French CJ and Gummow J). See also Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 39 [93]-[94] (McHugh J); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 597-598 [149] (Gummow and Hayne JJ).
[7]Minister for the Environment v Sharma (2022) 291 FCR 311, 385 [211] (Allsop CJ) (‘Sharma’).
[8]Ibid 385 [211] (Allsop CJ); Caltex Refineries (Qld) Pty Ltd vStavar (2009) 75 NSWLR 649, 677 [105] (Allsop P).
In this case, the plaintiffs have no real prospect of establishing the existence of the alleged duty of care. The alleged facts reveal no relevant relationship between the alleged tortfeasors (police officers) and the plaintiffs, and in particular no relationship which has the degree of ‘closeness and directness’ necessary for the intervention of the tort of negligence. In summary:
(a) the plaintiffs do not allege that the police knew of any specific and reasonably foreseeable attack or act of violence that Hassan was planning to carry out;
(b) the relevant risk was the risk that a third party (Hassan) would engage in (violent) conduct, which is a situation in which the law generally does not impose a duty of care unless there are exceptional circumstances (for example, where a third party is in the custody of the putative tortfeasor);
(c) the plaintiffs do not allege that they were relevantly reliant upon police or that police had assumed any particular responsibility for the plaintiffs;
(d) the plaintiffs are not alleged to be in a class of persons that was especially vulnerable to the risk that Hassan would carry out a terrorist attack;
(e) the scope of the alleged duty is vast and would impose indeterminate liability on police in respect of harm suffered by any member of the public;
(f) there was no relevant relationship of proximity between the police and the plaintiffs, who were not individuals at special risk of harm from Hassan’s conduct beyond the risk posed to the public at large – and in that regard the case is closely analogous to the seminal decision of the House of Lords in Hill v Chief Constable of West Yorkshire[9] (‘Hill’);
[9][1989] AC 53 (‘Hill’).
(g) any capacity that police officers had to ‘control’ the risk that Hassan would carry out a terrorist attack was not so significant, special or close as to support the imposition of a duty of care, including because:
(i) the plaintiffs’ contention that the police officers could have prevented the terrorist attack if they had exercised their powers in a particular way is highly speculative;
(ii) any ‘control’ the police had over that risk was also subject to (or mediated by) intervening actions and decisions by others, including ASIO and those required to make decisions about bail had Hassan been arrested; and
(iii) it is not alleged that the prerequisites for preventative detention of Hassan under the TCPA were satisfied; and
(h) policy considerations recognised by the courts militate against the imposition of the alleged duty as they would conflict with the duty of police to investigate and suppress crime for the benefit of the public at large.
Plaintiffs
The plaintiffs accept that the duty of care they allege was owed to them by police officers is novel.
The TCPA increased the special powers held by police in relation to dealing with ‘terrorist acts’ which are defined to include, inter alia, an action or threat of action that may cause physical harm to a person. By reason of these powers and the actions taken up to 9 November 2018, police officers knew that Hassan had the potential and likely desire to commit a terrorist act.
It was reasonably foreseeable to police officers in the weeks prior to the attack that there was a risk Hassan would commit a terrorist act affecting those in close proximity to him, according to the material that was clearly before them. This is evidenced by the fact that the police had taken desperate actions to try and locate Hassan and had planned to arrest him on 10 November 2018. Although the identities of the specific persons at risk would change depending on where Hassan was, they would be known from time to time. These persons would be known to the same extent that the persons in Matthews v SPI Electricity Pty Ltd (No 2)[10] (‘Matthews’), those being persons in the proximity of a potential path of fire, were known. It was also clearly foreseeable that there was a risk of injury to persons who were in close association with a person directly injured by the attack.
[10](2011) 34 VR 584 (‘Matthews’).
The police have unique surveillance and monitoring powers which enable them to determine who is likely to carry out an act of terrorism. The TCPA enhanced the police’s capacity to exercise these powers and created with it an associated acceptance of responsibility. The plaintiffs were entitled to expect that they could rely upon the police’s assessment of the terrorism risk Hassan posed, rather than endeavouring to protect themselves.
The indiscriminate nature of terrorism meant the plaintiffs could not inform themselves of or protect themselves from the risks associated with terrorist attacks. They were clearly dependent upon the police to protect them from the probability that Hassan would carry out a terrorist act, once police were aware of that probability.
Victoria Police officers’ knowledge of the risk posed by Hassan and the powers conferred by Part 2AA of the TCPA meant they had the ability to detain and control Hassan in order to prevent the risk to the community of a terrorist act arising.
The fact that precise victims of a risk of harm cannot be determined does not exonerate a party of a duty if the victims can be contemplated. Here, the victims are persons who would be in close proximity to Hassan from time to time. They are identifiable by reference to Hassan’s locality, which was under police surveillance. The proximity of the victims would be clearly known to the police.
While it is arguable that there may not be a duty to undertake various investigations for the protection of the community, once the police had the requisite knowledge in October 2018 that there was a probability that Hassan would commit a terrorist act, a duty arose for the police to protect the community in accordance with that knowledge.
Pleadings
Foreseeability and knowledge are pleaded in paragraphs [74] and [75] of the ACSC. Paragraph [74] reads:
74.From July 2015 and in particular by 5 November 2018, the police officers engaged in the assessment and surveillance of Hassan by reason of their specialised knowledge and in particular by October 2018 foresaw that members of the community who were physically located in the vicinity of Hassan were at risk of a terrorist attack by Hassan.
No particulars of this pleading are provided. The relationship between the three dates, July 2015, October 2018 and 5 November 2018, is unclear. It is not said what events had occurred by October 2018 or by 5 November 2018 which are relied on to establish that the risk of harm from a terrorist attack by Hassan was foreseeable. Apart from the reference to members of the public in his vicinity, the pleading does not identify the class of persons who were at risk from Hassan. The pleading does not say why those persons were at risk. Beyond the reference to a ‘terrorist attack’ the pleading does not identify the nature, degree or gravity of the risk, or say why police knew or should have foreseen that there was an imminent risk of attack.
Paragraph [75] reads:
75. At all material times the police officers working on Hassan’s files in the
(a) JCTT;
(b)CTC;
(c)SIU, and;
(d)CVE Unit.
knew or ought to have known that Hassan posed a high risk of carrying out a terrorist attack on members of the public.
Particulars of knowledge
(a)In or about August 2015, using the Security Prioritisation Tool (“SPT”), the SIU assessed Hassan as a high risk of engaging in political violence;
(b)In January 2016, ASIO asked SIU to restrict its monitoring of Hassan to ‘desktop activities’ precluding direct engagement and physical surveillance of him;
(c)In May 2016, Hassan’s brother Ali Khalif Shire Ali was primary target of JCTT Operation San Jose. Hassan was considered a peripheral person of interest;
(d)In or about September 2017, Victoria Police intercepted Hassan in his vehicle locating a sheaf of papers quoting Islamic teaching with references to [divine] destinies and slaughtering within their text;
(e)In about November 2017, operation San Jose was to resolve and it was anticipated that Hassan would be arrested as part of it;
(f)Victoria Police had learned that Hassan had in his possession the Islamic State Lone Mujahid Pocketbook manual;
(g)In late October 2018, SIU officers wanted to ascertain Hassan’s whereabouts so he could be interviewed by the SIU. Efforts to ascertain his whereabouts included multiple drive-bys of an address associated with Hassan and the police airwing flying over 3 addresses associated with Hassan.
The pleading does not describe a relationship between specific events that occurred in the weeks and days before the attack to the risk of harm posed by Hassan.
The plaintiffs plead duty in paragraph [77], which reads:
In the premises, at all material times the police officers working in the
(a)JCTT;
(b)CTC;
(c)SIU, and;
(d)CVE Unit.
owed the Plaintiffs a duty to take reasonable care to avoid injury to the Plaintiffs in the monitoring, assessment and managing of the risk that Hassan posed to members of the public of carrying out a terrorist attack against them which arose because of the following salient features:
a)The police officers knew Hassan posed a high risk of carrying out a terrorist attack against members of the public;
b)It was reasonably foreseeable that if Police did not detain Hassan when he purchased four propane gas cannisters and three liquid petroleum gas bottles on 5 November 2018 that a terrorist attack against those physically close to him was about to occur.
This is the first mention in the pleadings of Hassan’s purchase of gas bottles on 5 November 2018. It is unclear whether the police were aware of the purchase. The pleading does not explain how the gas bottles were relevant to the attack, nor how or why the gas bottle purchase is relevant to risk, foreseeability or duty. The pleading describes the duty as being engaged ‘at all material times’ to ‘the plaintiffs’ as ‘members of the public’. It is not clear whether the plaintiffs allege that officers owed a duty to them at all times from July 2015, from October 2018, or from 5 November 2018. There is no explanation of why the gas bottle purchase made the risk of a terrorist attack against those physically close to Hassan foreseeable. Nothing is said about the nature of the terrorist attack that was foreseeable.
The plaintiffs plead the scope of the alleged duty at substantial length but without precision. It is difficult to understand how many of the matters pleaded could be relevant to the existence or scope of a duty owed by police officers to the plaintiffs. For example, the plaintiffs allege the scope of the duty required police officers to refer Hassan to the CVE program during the period from July 2015 to November 2018, and to implement ‘adequate policies, procedures or practices’ for the oversight of Hassan’s file over the same period. Some matters pleaded are more specific and immediate to the risk of harm posed by Hassan in early November 2018. First, the plaintiffs allege the duty required officers to have regard ‘to Hassan’s escalation of violent events in the months leading up to the [attack] and [determine] that an attack was imminent and that Hassan needed ongoing physical surveillance’. Second, the plaintiffs plead that the duty required the SIU to have procedures in place that would have culminated in officers ‘having Hassan under constant surveillance and thereby knowing that he had obtained three liquid petroleum gas bottles and four propane cannisters on or about 5 November 2018 and that an attack was imminent’.
Breach and causation are pleaded by the plaintiffs as follows:
The Incidents were caused by the negligence of those Police Officers referred to in the previous paragraphs whereby but for their negligence Hassan would have been:
(a)under physical surveillance at the time he purchased the gas bottles and propane cylinders and/or;
(b)under physical surveillance at the time of the Incidents and prevented from carrying them out, or;
(c)in custody at the time of the Incidents (especially on account of him acquiring the gas bottles and propane cylinders in particular mm herein).
The lengthy particulars of negligence appear to correspond with the scope of duty pleading. One of the more concrete allegations particularised is the failure ‘to arrest Hassan at any time from 2 November 2018’ when his current residential address became known to the SIU. The final particular of breach reads:
(mm)In the premises, failing to know that Hassan had obtained three liquid petroleum gas bottles and four propane cannisters on or about 5 November 2018 and that an attack was imminent.
One further paragraph of the pleading is relevant to the existence of the alleged duty:
There exists no countervailing policy reasons which militate against the imposition of a duty of care on the police officers to prevent Hassan from carrying out a terrorist attack:
(a)Imposition of a duty of care to prevent Hassan from carrying out a terrorist attack is not inconsistent or conflicting with duties of police officers; and
(b)No incoherence in the law created by the imposition of a duty of care in these circumstances on police officers to prevent Hassan from carrying out a terrorist attack.
Particulars
(a)By operation of Part 2AA of the Terrorism (Community Protection) Act 2003, Police officers had the power to detain members of the public such as Hassan in order to prevent a terrorist act that is capable of being carried out or could occur within the next 14 days;
(b)The existence of a duty of care to prevent a terrorist attack is consistent with the purpose of the Terrorism (Community Protection) Act 2003 which is to provide powers and obligations relating to the prevention of terrorist act;
(c)Victoria Police setup and operated the CTC, SIU and CVE as well as participated in the JCTT for the purpose of preventing terrorist threats or acts through the analysis and provision of timely and accurate intelligence;
(d)The existence of a duty of care to prevent the carrying out of a terrorist attack by an individual such as Hassan does not involve the imposition on police officers of a duty to apprehend unknown possible terrorists at large, but is rather confined to a duty to take reasonable care to prevent known potential terrorists who are or ought to have been monitored and or assessed and or detained as posing an unreasonable and imminent risk of danger to those members of the public who are in close proximity to them.
Analysis
An application for summary judgment under s 63 of the CPA may only be granted if it is determined that a pleaded claim has ‘no real prospect of success’. The test is whether the pleaded claim has a ‘real’ as opposed to a ‘fanciful’ chance of success.[11] Summary dismissal is an extreme measure as it effectively shuts a plaintiff out of an alleged claim forever.[12] For that reason, the summary dismissal power should be exercised with caution and only where it is clear that there is no real question to be tried.[13]
[11]Lysaght (n 4) 40 [35] (Warren CJ and Nettle JA).
[12]Smith (n 2) 373 [169] (John Dixon J).
[13]Lysaght (n 4) 40 [35] (Warren CJ and Nettle JA); Gu v Tampi [2020] VSCA 61, [34] (Beach, Kyrou and Emerton JJA).
Police officers are not immune from suit.[14]
[14]NSW v Spearpoint [2009] NSWCA 233, [9] (Ipp JA) (‘NSW v Spearpoint’); Smith (n 2) 373 [170] (John Dixon J).
The claim in this case does not fall within an established category in which the existence of a duty has been recognised. The task of determining whether a novel duty arises was described in NSW v Spearpoint[15] (‘NSW v Spearpoint’) by Allsop ACJ:
21It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 at [22].
22This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations.
[15][2009] NSWCA 233.
Allsop ACJ described the task as ‘one which is fact rich and fact intensive’.[16] This means that it will often be inappropriate to summarily dismiss a claim on the question of the existence of a duty, where the possibility exists of evidence relevant to that question being led at trial.[17]
[16]NSW v Spearpoint (n 14) [23]. See also Matthews (n 10) 613 [120] (J Forrest J); Smith (n 2) 373 [171] (John Dixon J).
[17]NSW v Spearpoint (n 14) [23] (Allsop ACJ); Smith (n 2) 373-374 [171]-[173] (John Dixon J).
If there is a duty in this case, it can only arise from the circumstances that bear on the relationships between a class of people that includes the plaintiffs and the police officers who they allege were negligent, and between those police officers and Hassan. The particular risk to which the class was exposed is central to the enquiry.
The plaintiffs’ current pleading is deficient and does not provide an adequate basis for determining whether, on the question of duty, there is no real prospect of the claim succeeding. The history of investigation and management of Hassan by Victoria Police officers may provide relevant context but cannot, without more, be the basis for imposing a duty owed by those officers to the plaintiffs. The reason for this can be expressed by reference to relevant salient features. The class of persons exposed to the general risk of a terrorist attack posed by Hassan from July 2015 is indeterminate because the timing, place and nature of any attack could not be known. As a consequence, there is no relationship of proximity between the police officers and the class of persons who were exposed to the general risk of a terrorist attack. That class would have included members of the general public in Victoria at the least, and possibly the whole of Australia. It is difficult to conceive how police officers had capacity to control such a diffuse risk in a way that would support the existence of a duty. Policy considerations would militate against the imposition of such a broad ongoing duty because of its conflict with the duty of police officers to investigate and suppress crime for the benefit of the public at large.
The problem is not cured if the ACSC is understood as alleging that a duty arose in late 2018. This is because there has been no attempt, or no adequate attempt, to define the nature and extent of the alleged foreseeable risk and the class of persons exposed to the risk to whom the duty was allegedly owed, by reference to events that led to the attack.
The decision in Hill is an example of the difficulty confronting a plaintiff who attempts to establish a duty owed by police. The plaintiff in Hill was the mother of the last victim of an offender who committed 13 murders and eight attempted murders of young women. The plaintiff alleged that police officers owed her a duty to exercise reasonable care and skill to apprehend the offender and thereby protect potential future victims in the general public. In dismissing the claim on grounds that the duty alleged did not exist, the House of Lords referred to features including that the offender was never in the custody of the police force, and that the plaintiff’s daughter ‘was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them’.[18]
[18]Hill (n 9) 62 (Lord Keith).
The cases where a summary dismissal application has failed are also instructive. In Dorset Yacht Co Ltd v Home Office[19] (‘Dorset Yacht’), the owners of a yacht sued the Home Office for damage caused by a group of Borstal trainees who, while under the supervision and control of officers, damaged the yacht while attempting to escape the island where they were working. Lord Diplock said, as to the general risk of damage caused by criminal acts:
The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself.[20]
[19][1970] AC 1004 (‘Dorset Yacht’).
[20]Ibid 1070.
In relation to the damage caused by the Borstal trainees, his Honour said:
…there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public.[21]
A duty arguably existed in Dorset Yacht because the trainees were under the control of the Borstal officers, had a history of escape, were taken to an island where the only means of escape would be by boat, and the yacht that was damaged was among the group of boats that were accessible to the trainees for the purposes of escape.
[21]Ibid.
In NSW v Spearpoint, the respondents alleged they suffered injury and damage resulting from an assault by the first respondent’s former partner. The offender had a history of domestic violence and repeated breaches of an apprehended violence order. The respondents reported the offender to police multiple times in the days before the assault, and on one of those occasions were told that a warrant had been issued for the offender’s arrest and detention. The respondents alleged their injuries resulted from police officers’ decision not to arrest or detain the offender. The Court dismissed an appeal from the trial judge’s refusal to dismiss the respondents’ claim. Ipp JA said:
In paragraph 10 of the amended statement of claim it is alleged that a police officer of relatively senior rank indicated to the respondents that a warrant had issued for the arrest of Mr Fittler and that he would be detained. An allegation of this kind would allow the respondents at trial to adduce evidence that they relied on the police for their protection. It would be open to the respondents to prove that they were thereby put in a vulnerable position as they altered their position accordingly.[22]
Allsop ACJ said:
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.[23]
[22]NSW v Spearpoint (n 14) [14].
[23]Ibid [24].
In Smith v State of Victoria[24] (‘Smith’), the plaintiffs alleged that they had been subject to a long history of family violence perpetrated by the first plaintiff’s former partner, who was the father of the other plaintiffs and known to police. The plaintiffs alleged repeated failures by police officers to protect them from family violence perpetrated by the offender while he was intoxicated. This included police officers dropping the offender off at or close to the plaintiffs’ home when he was intoxicated. John Dixon J said, refusing the defendant’s dismissal application:
In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.[25]
[24](2018) 56 VR 332.
[25]Smith (n 2) 373 [170].
The defendant submitted that an allegation that individual police officers could exercise control in order to prevent the offender from breaching an intervention order and committing an act of violence was untenable because ‘the application of the criminal law, orders of a court, and the rights and obligations imposed by the relevant family violence legislation constrained the ability of any individual officer to control the [offender].[26] John Dixon J said, rejecting that submission:[27]
The defendant’s submission was unduly narrow and in argument the defendant accepted that the relevant focus was on control of the risk not the offender. Once that is recognised, the issue of control becomes self-evidently fact sensitive and a matter for evidence. Alternative forms of control may include security for the plaintiffs, or surveillance of the father.
[26]Ibid 365 [132].
[27]Ibid 365 [135].
Adopting the same approach in this case, there are facts pleaded that may arguably establish control sufficient to support the existence of a duty. These include the diversion program, arresting Hassan as part of a disruption strategy or so that SIU officers could discuss matters of national security with him, and surveillance of Hassan.
In relation to an incoherence argument made by the defendant, John Dixon J said:
In particular, I am not disposed to accept in an abstract way arguments based upon irreconcilable duties or policy considerations that are not specifically particularised and proved by reference to the underlying facts. Likewise the salient features identified in the ASOC are fact sensitive, capable of being found on the assumed facts, if proved at trial.[28]
[28]Ibid 374 [173].
In Matthews, the plaintiffs alleged breach of a duty owed by Victoria Police officers to warn members of communities threatened by the approach of the Kilmore/King Lake bushfire on Black Saturday in 2009. The duty to issue warnings was alleged to have arisen once the fire started. J Forrest J found that, while police officers had no control over the fire, those officers on the ground and in coordination roles arguably had control over the content and manner in which warnings were given generally, and to individuals who may have been reliant on them.
A common thread running through these cases is the focus on the immediate circumstances relevant to the relationship between the alleged tortfeasor and the person harmed or the class to whom that person belonged, and the particular risk to which the identified person or class was exposed. A focus on these immediate circumstances is necessary to consider the foreseeability of that particular risk of harm and the salient features relevant to the existence of a duty which include the degree of control of the alleged tortfeasor over that risk, identifying the class of persons exposed to it, the degree of harm, vulnerability, reliance, and assumption of responsibility.
The ACSC does plead some immediate circumstances that are potentially relevant to the existence of a duty. These include:
(a) the alleged acts of violence by Hassan in August and September 2018;
(b) the alleged hit and run driving incident on 12 October 2018;
(c) the LEAP warning that Hassan ‘may be violent and carrying a weapon’ published on 2 November 2018;
(d) the altercation allegedly involving Hassan on 3 November 2018; and
(e) Hassan’s purchasing of gas bottles on 5 November 2018.
However, there has been no attempt in the pleading to define the particular risk, the class of persons exposed to that risk, or to say how those matters were reasonably foreseeable to police officers by reference to these more immediate circumstances. While the pleadings do state that by October 2018 it was foreseeable to police officers ‘that members of the community who were physically located in the vicinity of Hassan were at risk of a terrorist attack by Hassan’, and that by the time Hassan purchased the gas bottles on 5 November 2018 it was foreseeable ‘that a terrorist attack against those physically close to [Hassan] was about to occur’, they do not explain why or how Hassan’s actions resulted in a particular risk of injury to an identifiable and defined class of persons, or why those matters were reasonably foreseeable to police.
I have concluded that the plaintiffs’ current pleading is deficient and does not provide an adequate basis for determining whether there is a real prospect of establishing a relevant duty owed to them by police officers. For that reason I will strike out the ACSC. I will give the plaintiffs an opportunity to replead so that the case they seek to make is sufficiently illuminated to allow me to determine the defendant’s summary dismissal application.
I will hear from the parties as to the form of orders, including the time allowed to replead; the timetable for further submissions after repleading; and as to costs.
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