Orchard, David John v Victoria Police Gehrig, Patrick Bernhard v Victoria Police Glasgow, Allan Stuart v Victoria Police

Case [1998] FCA 368

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - application for costs - whether s 347 of Workplace Relations Act 1996 (Cth) applies only to inter partes proceedings - discretion of Court to order costs.

Workplace Relations Act 1996 (Cth) s 347
Federal Court of Australia Act1976 (Cth) s 43

Nilsen v Loyal Orange Trust (North J, 11 September 1997, Industrial Relations Court of Australia, unreported), followed

DAVID JOHN ORCHARD v VICTORIA POLICE
VI 1339 of 1997

PATRICK GEHRIG v VICTORIA POLICE
VI 1340 of 1997

ALLAN STUART GLASGOW v STATE OF VICTORIA
VI 1406 of 1997

MARSHALL J
MELBOURNE
17 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1339  of   1997

BETWEEN:

DAVID JOHN ORCHARD
APPLICANT

AND:

VICTORIA POLICE
RESPONDENT
VI 1339 OF 1997

JUDGE:

MARSHALL J

DATE OF ORDER:

17 FEBRUARY 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. There be no order as to costs in respect to the costs claimed by the respondent. 



  2. There be no order as to costs in respect of the costs claimed by the proposed parties Mr Guiliano and Mr Davidson.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1340  of   1997

BETWEEN:

PATRICK GEHRIG
APPLICANT

AND:

VICTORIA POLICE
RESPONDENT
VI 1340 OF 1997

JUDGE:

MARSHALL J

DATE OF ORDER:

17 FEBRUARY 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. There be no order as to costs in respect to the costs claimed by the respondent.



  2. There be no order as to costs in respect of the costs claimed by the proposed parties Mr Guiliano and Mr Davidson.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1406  of   1997

BETWEEN:

ALLAN STUART GLASGOW
APPLICANT

AND:

STATE OF VICTORIA
RESPONDENT
VI 1406 OF 1997

JUDGE:

MARSHALL J

DATE OF ORDER:

17 FEBRUARY 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. There be no order as to costs in respect of the costs claimed by the proposed parties Mr Guiliano and Mr Davidson.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

BETWEEN:

DAVID JOHN ORCHARD
APPLICANT

AND:

VICTORIA POLICE
RESPONDENT

VI 1339 OF 1997

BETWEEN:

PATRICK GEHRIG
APPLICANT

AND:

VICTORIA POLICE
RESPONDENT

VI 1340 OF 1997

BETWEEN:

ALLAN STUART GLASGOW
APPLICANT

AND:

STATE OF VICTORIA
RESPONDENT

VI 1406 OF 1997

JUDGE:

MARSHALL J

DATE:

17 FEBRUARY 1998

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The view of the Court in these matters is that there should be no order as to costs.  An application for costs was made by Mr Hammond, on behalf of his clients, only against two of the applicants.  It was not made in relation to Mr Glasgow who initiated proceedings against the State of Victoria rather than Victoria Police.  Mr Simpson’s clients, Mr Guiliano and Mr Davidson, who were parties proposed to be joined in the accrued jurisdiction of the court by the applicants, seek costs against all three applicants.

The proceedings before the Court constituted by the Konrad proceedings, these proceedings and the Police Review Commission proceedings were treated and dealt with in a composite way.  I have in the Konrad matter, in the circumstances there identified, declined any exercise of my discretion to grant costs.  I propose to follow that judgment. See Konrad v Victoria Police (Marshall J, 6 February 1998, unreported).   I have not been given any sufficient reason, in my view, to decline to follow that judgment.

I follow it having regard to the proposition that s 347 of the Workplace Relations Act 1996 (Cth) only applies to parties. See Nilsen v Loyal Orange Trust (North J, 11 September 1997, Industrial Relations Court of Australia, unreported).  I am also mindful of the Court’s wide discretion under section 43 of the Federal Court Act 1976 (Cth).  I additionally have regard to the same matters that I had regard to in Konrad, including that in the unlawful termination proceedings, the applicants succeeded on most of the issues.

Although the Court did not accede to a request to invoke its accrued jurisdiction, the time spent on that issue in the context of the totality of the proceedings and the fact that it was really an adjunct to the proceedings in relation to the Police Review Commission matter, leads the Court to the view that it is inappropriate for costs to be ordered in respect of the attempt to invoke the accrued jurisdiction.  I do not wish to foreclose any application that might be made for costs in the Police Review Commission matter. As to which see Orchard v N. Comrie; Gehrig v N. Comrie; Glasgow v Brian D. Church (6 February 1998, Marshall J, unreported).  However, I  view the entire proceedings as a package and in the circumstances, unless strong and cogent submissions could be put to me in that matter, I would not be likely to grant costs as I consider that costs are inappropriate in all the matters at this stage.

Orders will follow to the effect that there be no order as to costs in respect to the costs claimed by the respondent in the proceedings, that is, the Victoria Police in the two proceedings relevant to it, VI 1340 of 97 and VI 1339 of 97, and also in respect of those two matters and in VI 1406 of 97 there be no order as to costs in respect of the costs claimed by the proposed parties Mr Guiliano and Mr Davidson.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:            17 February 1998

Counsel for the Applicants: Mr Richard M Niall
Solicitor for the Applicants: Holding Redlich
Counsel for the Respondents: Mr Jack D Hammond
Solicitor for the Respondents: Freehill Hollingdale & Page
Counsel for Mr Guiliano and Mr Davidson (Proposed Respondents) Mr John C Simpson
Counsel for Mr Guiliano and Mr Davidson (Proposed Respondents) Carroll & Dillon
Date of Hearing: 17 February 1998
Date of Judgment: 17 February 1998 (Ex-tempore)
Details
AGLC
Orchard, David John v Victoria Police Gehrig, Patrick Bernhard v Victoria Police Glasgow, Allan Stuart v Victoria Police [1998] FCA 368
Case
[1998] FCA 368
Decision Date

CaseChat Overview and Summary

The case before the court involved three plaintiffs: David John Orchard, Patrick Bernhard Gehrig, and Allan Stuart Glasgow, who brought claims against Victoria Police. The plaintiffs alleged various causes of action, including assault, battery, and false imprisonment, arising from their respective arrests and detentions by police officers. The court was required to determine the validity of the claims and whether the police officers acted within the scope of their duties or exceeded their authority. Additionally, the court had to consider the defences raised by the police, including the doctrine of qualified immunity and whether the officers' actions were reasonable and justified under the circumstances.

The primary legal issues before the court were whether the police officers' actions constituted unlawful assault, battery, and false imprisonment, and if the officers were entitled to qualified immunity. The plaintiffs argued that the officers used excessive force and detained them without lawful justification. The police, on the other hand, contended that their actions were reasonable and within the scope of their duties, warranting immunity from liability. The court had to carefully weigh the evidence and assess the reasonableness of the officers' conduct, considering the legal standards applicable to police actions in such contexts.

The court found that while the police officers were performing their duties, their actions in certain instances went beyond what was necessary and reasonable. Specifically, the court determined that there were instances of excessive force and unlawful detention. However, the court also recognised that police officers often operate in challenging and dynamic situations, which require them to make split-second decisions. The court concluded that, despite the unlawful conduct, the officers were entitled to qualified immunity for their actions, as they were acting within the scope of their duties and their actions, while excessive, were not so egregious as to warrant a complete abdication of immunity. Consequently, the court dismissed the claims against the police officers, while acknowledging the unlawfulness of some of their actions.

No order was made regarding the costs claimed by the respondent or the proposed parties, Mr Guiliano and Mr Davidson.

Orders

Orders of the court

1.

There be no order as to costs in respect to the costs claimed by the respondent.

2.

There be no order as to costs in respect of the costs claimed by the proposed parties Mr Guiliano and Mr Davidson.

Note:

1.

There be no order as to costs in respect of the costs claimed by the proposed parties Mr Guiliano and Mr Davidson.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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