Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd and Ors v Utility Services Corporation Ltd and Ors (Ruling No 15)
[2013] VSC 112
•18 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No.4788 of 2009
| CAROL ANN MATTHEWS | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS | Defendants |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS | Plaintiffs by counterclaim |
| v | |
| UTILITY SERVICES CORPORATIONS LTD (ACN 060 674 580 & ORS | Defendants by counterclaim |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2013 | |
DATE OF RULING: | 18 March 2013 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd & Ors v Utility Services Corporation Ltd & Ors (Ruling No 15) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 112 | |
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EVIDENCE - Evidence (Miscellaneous Provisions) Act 1958 (Vic), ss 19C, 30 – Whether statements by certain officers of Victoria Police provided to the Victorian Bushfires Royal Commission fall within the scope of the immunity under s 19C(2) of the Evidence (Miscellaneous Provisions) Act1958 (Vic) – Officers not party to proceedings and not at risk of judgment against them – Statements not exempt from admission into evidence by way of s 19C(2).
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APPEARANCES: | Counsel | Solicitors |
| For SPI Electricity Pty Ltd | Mr B F Quinn SC with Mr C O Parkinson | Herbert Smith Freehills |
| For the Police Officers | Mr J Langmead SC with Mr A Imrie | Russell Kennedy |
HIS HONOUR:
Introduction
At the trial, SPI will seek in its cross claim against the State of Victoria to tender parts of statements given by a number of Victorian Police officers[1] to the Victorian Bushfires Royal Commission.[2] It is said that those parts of the statements contain admissions within the meaning of s 81 of the Evidence (Miscellaneous Provisions) Act1958 (Vic)[3] which will be used to demonstrate that the officers were negligent in carrying out their duties on Black Saturday.[4] The State is alleged to be liable for the acts and omissions of the officers primarily by reason of the Police Regulation Act 1958(Vic).[5]
[1]“the officers”.
[2]“VBRC”.
[3]“the Act”.
[4]Mrs Matthews has picked up SPI’s claim against the State of Victoria which is reproduced in her Statement of Claim.
[5]SPI also relies upon the Crown Proceedings Act 1958 (Vic) but it is difficult to see in the light of the allegations made by SPI how this Act could have any application; see below [19].
The officers contend that the tender of any part of the statements is precluded by ss 19C(2) and/or 30 of the Act. Notably, in argument, the parties relied solely on s 19C(2).
Section 19C(2), in effect, provides an immunity precluding the production of material in proceedings where that material has previously been required to be produced before a “Commission”.
The issue on this application arises out of the wording of s 19C(2), which describes the immunity as being a protection from the use of evidence previously produced before a Royal Commission in proceedings “against” the person who produced it. The central issue is whether the protection given by s 19C(2) of the Act extends to this case, in which the officers who produced material before the VBRC are not parties to the proceeding in which the material is sought to be tendered, but where their alleged acts or omissions found the claim of negligence brought against the State.
SPI argues that those parts of the statements which may be relied upon by it do not fall within the scope of s 19C(2). It says this is because the officers are, at most, potential witnesses in its case against the State and, in this context, the relevant parts of the statements constitute evidence only “against” the State and not evidence “against” the officers, as s 19C(2) requires. Accordingly, SPI says that s 19C(2) has no application.
The officers submit that a necessary precondition for a finding to be made against the State is a finding that one or more of the officers have been negligent. In light of this, they contend that the immunity extends beyond those who are a party to a proceeding. They say that, in this situation, where the officers are vulnerable to a finding of negligence, they should be protected by s 19C(2). This, it is said, is consistent with the legislative intent in providing the immunity.
Further, the officers contend that any findings in this proceeding reliant upon one of the admissions could prompt a disciplinary proceeding in which their VBRC evidence could be used against them, thereby undermining the protection offered by s 19C(2).
The officers
The ten officers represented by counsel whose VBRC statements SPI seeks to tender into evidence, and their professional roles or appointments on the day of the Kilmore East / Kinglake Fire, are:
(a)Christine Nixon, then Commissioner of Police and, accordingly, State Emergency Response Coordinator[6] pursuant to s 11(1) of the Emergency Managements Act 1986;[7]
[6]“State Coordinator”.
[7]“EMA”.
(b)Kieren Walshe, then Deputy Commissioner of Police, appointed as Deputy State Emergency Response Coordinator[8] pursuant to s 11(2) of the EMA;
[8]“Deputy Coordinator”.
(c)Stephen Fontana, then Assistant Commissioner of Police, who acted as Deputy Coordinator and undertook the role and responsibilities of the State Coordinator on Black Saturday;[9]
[9]State Parties’ Defence to Plaintiff’s Statement of Claim dated 4 March 2013 [205E].
(d)Rod Collins, then Superintendent – referred to in the statement of claim as one of the “SER” personnel;[10]
(e)Peter Billing, then Superintendent, acting in the position of divisional emergency response coordinator (“DERC”) for the Seymour division, appointed pursuant to the state emergency response plan DISPLAN;[11]
(f)Vin Butera, then Senior Sergeant, acting in the position of municipal emergency response coordinator (“MERC”) for the Yarra Ranges municipal district, appointed pursuant to s 13 of the EMA;
(g)Tony Higgins, then Senior Sergeant, acting in the position of MERC for the Whittlesea municipal district, appointed pursuant to s 13 of the EMA;
(h)Brett Murphy, then Senior Sergeant, acting in the position of MERC for the Mitchell municipal district, appointed pursuant to s 13 of the EMA;
(i)Mark Hoekstra, then Sergeant, acting as a field ERC (“FERC”), being a form of emergency response coordinator pursuant to DISPLAN; and
(j) Wayne Spence, then Senior Sergeant, acting as an FERC.[12]
[10]Mrs Matthews’ Statement of Claim dated 25 February 2013 [205G].
[11]Mrs Matthews’ Statement of Claim dated 25 February 2013 [196], [206].
[12]Mrs Matthews’ Statement of Claim dated 25 February 2013 [193], [206].
The relevant legislation
Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act, “Boards Appointed and Commissions Issued by the Governor in Council”, was enacted to bolster the powers of the Longford Royal Commission. In addition, it enhanced and clarified the powers of boards and commissions generally.
Section 19C, inserted by s 6 of the Crimes, Confiscation and Evidence (Amendment) Act 1998 (Vic), provides:
Incriminating answers
(1) Despite anything to the contrary in this Division, a person required to provide any information, or to produce any document or thing, to a commission, or appearing before a commission to give evidence, is not excused from providing the information, or producing the document or thing, or giving the evidence, on the ground that the information, or document or thing, or evidence, may tend to incriminate him or her.
(2) Any information provided, or document or thing produced, or evidence given, by a person to a commission is not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made the ground of any prosecution, action or suit against him or her other than in proceedings for perjury or giving false information.
Division 2 of Part II of the Act is entitled "Privileges Disabilities and Obligations of Witnesses". It includes s 30, which provides:
Statements made by witness before board or commission not to be used against witness
No statement made by any person in answer to any question before any board or commission empowered under the provisions of this Act or other like body or person empowered under any other Act to summon witnesses shall (except in case of a charge against such person for perjury committed by him in making such statement) be admissible in evidence in any proceedings civil or criminal against him, nor be made the ground of any prosecution action or suit against him; and a certificate signed by the chairman of such board or commission or body or by the sole commissioner or by such person that such statement was made in answer to any such question or in the course of any inquiry before such board commission body or person shall be conclusive evidence that the same was so made.
The nature of SPI’s claim against the State
One of the sub-groups in this large class action is that which comprises claimants, including the representative plaintiff, Mrs Mathews, who sustained personal injury on Black Saturday. SPI, as a defendant to that group’s claim, seeks contribution against the State, as well as CFA and DSE, pursuant to Part IV of the Wrongs Act 1958 (Vic). SPI asserts that the officers failed to take reasonable care to ensure that timely and adequate bushfire warnings were given to the communities in the path of the fire so as to enable persons at risk to avoid personal injury, loss and damage.[13]
[13]Mrs Matthews has picked up this claim and joined the State of Victoria on an identical basis.
This claim is based in common law negligence, asserting that the officers holding various positions of responsibility for emergency management on Black Saturday breached the duty of care they owed to Mrs Mathews and the relevant group members . Stated generally, SPI asserts that the officers:
(a)at all relevant times, knew or ought to have known, or knew or ought to have known of the likelihood, of the commencement, course and conduct of the Kilmore East / Kinglake Fire, as well as the prevailing and predicted weather conditions. This included the fire’s movements over the course of the afternoon of 7 February 2009, and the significant wind change which affected the fire at around 5:45pm; and
(b) failed to disseminate or cause to be disseminated appropriate advices or warnings to persons in a number of communities in the path of the Kilmore East / Kinglake Fire such as:
(i) the source, direction and spread of the fire, including the fact that the fire had crossed the Hume Highway shortly before approximately 2:00pm and that from this time was considered to be out of control;
(ii) the approximate time that the fire was predicted or anticipated to impact particular communities;
(iii)the impact of any wind changes forecast during the relevant period; and
(iv) actions that persons at risk should take and by what time, in order to protect life and property.[14]
[14]SPI Defence and Counterclaim to Eighth Amended Statement of Claim dated 1 March 2013 [485]-[489].
The State is said to be liable for the negligent acts and omissions of these officers pursuant to:
(a)section 23(1)(b) of the Crown Proceedings Act 1958 (Vic); or
(b)section 123(2) of the Police Regulation Act 1958 (Vic).
Section 123 of the Police Regulation Act 1958 (Vic) reads:
Immunity of members
(1) A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force or police recruit.
(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a member of the force or police recruit, attaches instead to the State.
(3) This section applies to acts or omissions occurring before as well as after the commencement of this section.
(4) In this section—
police recruit means a person appointed under section 8A.
Section 23(1)(b) of the Crown Proceedings Act provides for deemed vicarious liability of the State in the following terms:
[T]he Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.
The scope of each of those provisions was considered in some depth by Kyrou J in Slaveski v State of Victoria,[15] and by myself in Matthews v SPI & ors (Ruling No 2).[16] It is not necessary to repeat in any detail the discussion in each of those cases. The effect was summarised in the submissions of SPI as follows:
In this case, generally speaking if the negligence of a police officer in failing to provide adequate warnings was in respect of the exercise of (or failure to exercise) a common law or statutory power vested in the police officer by virtue of holding that office, and independently of any direction given by their employer (the State) in furtherance of the employment relationship, then the source of the State’s liability for such negligence will be section 123(2) of the Police Regulation Act. On the other hand, if the negligence of a police officer occurred in the course of undertaking duties or responsibilities on behalf of the State unrelated to the exercise of a common law or statutory power conferred upon police officers, the source of the State’s liability will be section 23(1)(b) of the Crown Proceedings Act.[17]
[15][2010] VSC 441.
[16][2011] VSC 168.
[17]SPI’s written submissions [14].
A police officer carrying out standard police work, including that in an emergency, would usually be exercising his or her common law or statutory powers and thus fall within s 123(2) of the Police Regulation Act. This is clearly the case here. Although the allegations have been put against the State by reference to both the Crown Proceedings Act and the Police Regulation Act:
(a) the pleaded case is against individual police officers;
(b) the officers were clearly exercising their professional duties on 7 February 2009 in response to an emergency; and
(c) there has been no suggestion by any party that the officers acted other than in good faith in performing their duties on 7 February 2009.
Assuming this to be correct, the officers are protected from liability for any breach of duty by the terms of s 123 of the Police Regulation Act. Reliance by Mrs Matthews and SPI upon the Crown Proceedings Act for the purposes of this application is, it would appear, unnecessary. I note that this has become absolutely clear since the openings submissions in the trial.[18]
[18]State Parties’ written opening submissions [496].
Analysis
The principles of statutory interpretation in relation to this exercise can be summarised succinctly:
(a)a court is required to construe the meaning and scope of s 19C of the Act in a manner that would promote the underlying purpose or object of the Act;[19]
(b)in undertaking the process of construction, a court is entitled to consider “any matter or document that is relevant”. Section 35(b) of the Interpretation of Legislation Act 1984 (Vic) specifically refers to, among other things, reports of parliamentary proceedings and explanatory memoranda, as being possible points of reference; and
(c)the starting point in determining the purpose of a provision is the ordinary grammatical sense of the words used,[20] and indeed, it may be the end point. But the context, including other parts of the relevant piece of legislation, its legislative history, and the existing state of the law, may all play a part in determining the meaning and scope of the relevant provision.[21] The task as far as is practicable is to construe, in this case s 19C(2), consistently with the language and purpose of all the provisions of the statute.[22]
[19]Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) .
[20] Alcoa (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 31.
[21]CIC Insurance v Bankstown Football Club (1997) 187 CLR 384, 408; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, 405.
[22]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381.
Although the officers initially relied upon s 30 of the Act, which provides immunity for any person “in answer to any question before any board or commission”, the argument between the parties was concentrated, understandably, on s 19C, which deals specifically with the provision of information, a document or a thing.
It is helpful to look at the background to Division 5 of Part I of the Act (“Boards appointed and commissions issued by the Governor in Council”). Sections 19A – 19C were inserted into Division 5 of Part 1 by s 6 of the Crimes Confiscation and Evidence Acts (Amendment) Act 1998.
The Explanatory Memorandum to the Amendment Crimes, Confiscation and Evidence Acts (Amendment) Bill states the following in relation to s 19C:
Section 19C provides that persons providing evidence to a commissioner may not refuse to do so on grounds of the privilege against self-incrimination. However, such evidence will not be admissible against the person in any criminal proceedings other than for perjury or giving false information.[23]
[23]Explanatory Memorandum, 3.
In the Second Reading Speech to the Amendment Act, these amendments were directly linked to the need identified by Parliament to ensure that the Longford Commission would be able to “properly fulfil its functions”, enabling it to “obtain access to all necessary documents and information”. The Second Reading Speech states that the Amendment Act “supplements the powers currently conferred on commissions of inquiry” and that the effect of the inserted provisions:
will be to ensure that valuable time and resources are not wasted on associated litigation or technical legal disputes about whether various vital evidence should be produced to a commission. At the same time, the amendments will provide appropriate safeguards for the persons who are providing that evidence.[24]
[24]Second Reading Speech, Mr Stockdale (then Treasurer), 29 October 1998, House of Assembly.
It was accepted by counsel for SPI and the officers that sub-ss (1) and (2) of s 19C have a direct relationship. Sub-section (1) removes an important privilege, that against self-incrimination, by requiring the provision of information including, as in this case, documents. Sub-section (2) then confers an important benefit on those who might provide information or documentation to a commission, such that the information or documentation is “not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made that the ground of any prosecution, action or suit against him or her.”
In other words, the removal of the privilege against self-incrimination is balanced by an immunity in respect of the provided material. The contest is the scope of the immunity.
Counsel for SPI and the officers each relied upon decisions in other jurisdictions in which similar provisions exist. Although informative in relation to the appropriate approach to interpretation of such provisions, none provide the answer to this piece of legislation and its interpretation which must, of course, turn upon its own text and the scheme in which it operates.
I should here mention a point that was not pressed by SPI. For s 19C(2) to be engaged it was held by Cummins J in DPP v Esso Australia Pty Ltd that the material provided must be “required” pursuant to s 19C(1).[25] I accept that construction however I am uncertain as to whether the word “required” in s 19C(1) means obtained coercively, as his Honour held. For my part, I think that much would turn upon the circumstances surrounding the provision of the statement to determine whether it was “required” – for instance, a police officer directed by his supervisor to provide a statement to a commission may not be coerced but could, I think, fall within the ambit of the section.
[25](2001) VSC 106 [4]-[7].
In my opinion, the argument of SPI that the immunity, insofar as it operates in relation to a civil proceeding, is only in respect of a proceeding “against” the particular officer, being a proceeding in which the officer is a party and in which a court, tribunal, or similar body is required to make a determination as to the legal rights and responsibilities of that officer, should be accepted for the following four reasons.
The officers are not parties to the proceeding
First, no officer is a party to the proceeding.
The proceeding is not brought against any of the individual officers – it is brought against the State solely and, in the event of a judgment, it will be entered against the State and not the officers.
In this context, the words “against him or her” tell against the construction advocated by the officers. The legislature could have provided a broad immunity in relation to the use of material produced before a Royal Commission by excluding its use in “any proceeding”, rather than limiting its scope to proceedings “against” the person who produced the material “in any proceeding”; it did not do so.
Whilst it is true, as counsel for the officers pointed out, that for a judgment to be entered against the State it will be necessary for a finding to be made in respect of breach of duty on the part of one or more of the officers, that does not mean the proceeding is against those officers: to the contrary, it is against the State which is the named defendant.
Counsel for the officers also contended that “[i]n substance, their [the officers’] vulnerability is much the same whether they are joined or not”.[26] I disagree. Although a finding of a breach of duty of care is necessary to a finding of liability on the part of the State, such a finding cannot impact the officers’ legal rights.
[26]Officers’ written submissions [14(d)].
I should add that I do not accept SPI’s contention that the officers are merely witnesses in the case. Their role is more than that, because they may be subject to a finding that one or other may have acted in breach of a duty owed to Mrs Matthews and/or the group members (or part of them). However I repeat the proceeding is not brought “against” them and any such finding will not affect the officers’ legal rights.
The officers retain the protection in future proceedings
Second, counsel for the officers submitted that if an officer is found to have breached his or her duty in the current proceedings, this may lead to separate disciplinary proceedings arising out of the acts or omissions that constituted the breach here, thus thwarting the protection of s 19C(2).
Assuming that the contents of an officer’s statement produced for the purpose of the VBRC play a part in determining that an officer breached his or her duty of care, the officer would nevertheless remain protected from reliance on the statement in any future proceeding to which s 19C(2) applies.[27] Accordingly in the context of a disciplinary proceeding to which the officer is a respondent, the VBRC statement would properly be identified as material provided to the Royal Commission and, as its deployment in that context would be a clear example of use ”against” that officer in a proceeding, it would be inadmissible pursuant to s 19C(2).[28]
The relationship between sub-sections (1) and (2) suggests this conclusion
[27]See Hartmann v Commissioner of Police (1997) 91 A Crim R 141 and below [41]-[42].
[28]See DPP v Esso Australia Pty Ltd [2001] VSC 106 [7].
Third, the interaction between sub-ss (1) and (2) demonstrate a harmony between the abrogation of the privilege against self-incrimination – sub-s (1) – and the compensatory protection afforded by its counterpart – sub-s (2).[29]
[29]Sorby v Commonwealth (1983) 152 CLR 281, 310 – 311.
The officers’ position is that sub-s (2), being properly construed as a “protective provision”, should be construed “as generously as the language of the section allows”. They rely upon a decision of the full bench of the Federal Court in Nilant v Macchia, in which Weinberg J, when referring generally to “beneficial” provisions, held that such provisions “should be construed beneficially, and as generously as the language of the section allows”.[30] In contrast, the officers’ position in relation to sub-section (1) is that, because this provision abrogates a fundamental common law principle, it must be construed strictly.
[30] Nilant v Macchia Nilant v Macchia (2000) 178 ALR 371, 379-80.
Counsel for the officers say that if s 19C(2) does not have a wide compensatory effect, it would “deprive them of the protection altogether”.[31]
[31]Officers’ written submissions [14(e)].
In Hartmann v Commissioner of Police,[32] the New South Wales Court of Appeal was required to determine whether, under a similar legislative scheme in New South Wales (namely, s 17(2) of the Royal Commissions Act 1923),[33] the restriction of the immunity to “civil or criminal proceedings” was broad enough to cover a disciplinary proceeding before a tribunal. The Court of Appeal found that it was, Cole JA noting:
The principle that the ingrained nature of the protection against self incrimination requires a strict construction of provisions said expressly or impliedly to remove that protection also requires that a liberal interpretation be given to the protective provisions in a statute purporting to protect a person from the consequences of the abrogation of the protection against self incrimination”.[34]
[32](1997) 91 A Crim R 141.
[33]s 17(2) of the Royal Commissions Act 1923 (NSW) relevantly provided that “An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings”.
[34](1997) 91 A Crim 141, 147.
Because of the penalties that can flow from disciplinary proceedings – including dismissal from employment and all of its financial consequences – the NSW Court of Appeal held that a “liberal interpretation” of s 17(2) of the Royal Commission Act meant that the reference to criminal and civil proceedings included disciplinary proceedings before a tribunal.
SPI characterise sub-ss (1) and (2) relative to one another in a similar manner, with sub-section (1) described as abrogating a right (namely, the privilege against self-incrimination) and sub-section (2) providing a “compensatory protection” (namely, protection from the evidence being used “against” them in the future).[35]
[35]SPI’s written submissions [25].
SPI argued that the protection should be read strictly, so that the protection is “no greater than that required to protect the relevant witness from the legal peril to which he or she was exposed by operation of sub-section (1)”, submitting that the protection “can be no greater than the abrogated privilege”.[36]
[36]SPI’s written submissions [27].
Although the Explanatory Memorandum referred only to “criminal proceedings” and not to civil proceedings (thereby failing to mirror precisely the language of s 19(2)), it is clear that the Parliament intended, in removing the privilege against self-incrimination, to confer the benefit of an immunity limited not just to criminal proceedings but also to a civil proceeding. The question is, however, did Parliament intend for that benefit to extend beyond proceedings to which the relevant person was a party?
In my view, adopting the generous interpretation suggested by counsel for the officers is to stretch the parliamentary language too far. By limiting the immunity to a proceeding “against” the person, the Parliament evinced an intention to restrict the scope of the immunity to proceedings to which the person is a party and which have the power to impact the legal rights of that party: Any prospect of a civil judgement, criminal conviction or disciplinary penalty based on the material was to be obviated, and the person supplying the information was to be in no worse position in providing the information than he or she would have been if the claim for privilege was successfully relied upon.
The language of s 19C does not permit an interpretation which would protect the officers in the current circumstances. By being required to provide certain information or documentation to the VBRC, the officers were deprived of the usual privilege against self-incrimination which serves as a protection to the legal rights of an individual. Accordingly, the officers are entitled to a compensatory privilege which protects their legal rights by restricting the future use of those materials. The Parliament did not restrict all future uses of those materials, but, in a civil case, restricted uses which may deleteriously impact their legal rights, namely, uses which create the risk of a potential judgment against the officers, with all of its injurious effects. In my view, this is as generous an interpretation as the legislation allows.
I note that, in its submissions, SPI contended that the compensatory benefit conferred by sub-s (2) can only apply to evidence which would tend to incriminate. I do not accept this. If that had been the intention of the legislature it would have said so, rather than extending it to “[a]ny information provided, or document or thing produced, or evidence given”.[37]
The officers are in all probability protected from liability by s 123 of the Emergency Services Act
[37]s 19C(2).
Fourth, it is, as counsel for SPI submitted, highly likely (indeed close to certain) that any of the officers’ activities on the day, as described in their statements – being the admissions which SPI seeks to rely upon – were carried out in the performance of their functions (statutory or common law). For instance, then Chief Commissioner of Police Christine Nixon, was fulfilling her duties as State Coordinator, pursuant to s 11(1) the EMA. Further, the allegations have not been maintained against officers “on the ground”, but rather against those who were in positions of managing the State’s response to the fire pursuant to the EMA or DISPLAN.
Moreover, as I mentioned earlier, it has not been suggested by any of the parties in opening submissions that the officers, in carrying out their duties on Black Saturday that may have resulted in a relevant act or omission, were acting in anything other than good faith.
Accordingly if the VBRC statements are admitted in these proceedings and a determination that one or more of the officers acted negligently on 7 February 2009, those officers will remain protected by s 123(1) and (2) which inhibit, by their terms, any finding of liability against any of the officers. Section 123(1) precludes a finding of personal liability against the officers for any acts or omissions, having the effect that any liability resulting from such an act or omission automatically attaches to the State.
Conclusion
The application of the officers’ should therefore be dismissed and orders made to that effect.
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