Saffari v State of Western Australia - [2024] WASCA 77

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SAFFARI -v- STATE OF WESTERN AUSTRALIA [2024] WASCA 77
CORAM:   MITCHELL JA
TOTTLE J
SEAWARD J

HEARD:   9 FEBRUARY 2024
DELIVERED          :   28 JUNE 2024
FILE NO/S:   CACV 24 of 2023
BETWEEN:   SHAHRIAR SAFFARI
Appellant
AND
STATE OF WESTERN AUSTRALIA
First Respondent
CHRIS DAWSON
Second Respondent
DANIEL TALBOT
Third Respondent
MAHER FLEYFEL
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   STRK J
Citation: SAFFARI -v- STATE OF WESTERN AUSTRALIA [No 2] [2023] WASC 46
File Number            :   CIV 3183 of 2019

Catchwords:

Torts - Practice and procedure - Where appellant commenced action for damages against the State and the Commissioner of Police alleging negligence in provision of inaccurate information about his criminal record to Commonwealth authorities - Where no allegation of corruption or malice is made against the Commissioner of Police - Where s 137 of the Police Act 1892 (WA) provides for the State rather than the Commissioner of Police to be liable on an action for tort for anything the Commissioner has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law - Whether Commissioner of Police is a necessary party to the proceedings - Whether primary judge erred in ordering the Commissioner of Police to be removed as a party at the pleading stage

Legislation:

Police Act 1892 (WA), s 137
Rules of the Supreme Court 1971 (WA), O 18 r 6(2)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	J E Shaw & J F Bennett
Second Respondent	:	J E Shaw & J F Bennett
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance

Solicitors:

Appellant	:	In person
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Third Respondent	:	State Solicitor's Office
Fourth Respondent	:	Pragma Lawyers

Cases referred to in decision:

Arvind Pty Ltd v Lamers [2020] WASCA 47
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
Coco v The Queen (1994) 179 CLR 427
Elovalis v Elovalis [2008] WASCA 141 (S)
Low v Romaro [2023] WASCA 155
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Ogbonna v Qantas Airways Ltd [2023] WASCA 168
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575
Saffari v State of Western Australia [No 2] [2023] WASC 46
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
Wurth Australia Pty Ltd v Burgess [2012] WASC 504

JUDGMENT OF THE COURT:

Introduction

On 29 December 2019, the appellant, Mr Saffari, commenced proceedings by writ of summons indorsed with a statement of claim. The respondents are the State of Western Australia (first respondent); Chris Dawson (the second respondent and the former Commissioner of Police); Daniel Talbot (the third respondent and a police officer) and Maher Fleyfel (the fourth respondent and a former work colleague of the appellant).
In broad terms, Mr Saffari's action concerns a prosecution commenced (and later discontinued) against him by the third respondent, and the provision by the Western Australian Police Force (Police Force) of allegedly inaccurate information about Mr Saffari to various organisations including the Australian Federal Police and the Commonwealth Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).
The appellant seeks damages from the first and second respondents for the second respondent's negligence in providing false information to the various organisations and entities; damages from the third respondent for negligence and malicious prosecution; and damages from the fourth respondent for malicious prosecution for making a false allegation to the Police Force, which led to the prosecution that was later discontinued.
There have been a number of amendments to the statement of claim by Mr Saffari and a number of interlocutory applications concerning the pleadings by the various respondents. The relevant version of the statement of claim for the purposes of this appeal is the amended further substituted statement of claim, filed on 25 October 2022 (statement of claim).
This appeal concerns an application by the first, second and third respondents to remove the second respondent as a party pursuant to O 18 r 6(2)(a) of the Rules of the Supreme Court 1971 (WA) (RSC). The application was made by way of amended chamber summons dated 30 November 2022. No defence had been filed by the respondents at the time the application was made, or when the application was heard. When originally filed, the chamber summons also sought orders striking out the appellant's indorsement of claim and statement of claim. However, by the time the application was heard (and following conferral and further amendments by the appellant to the statement of claim) the strike out application was no longer pressed.
As the third and fourth respondents have not participated in this appeal, we will refer to the first and second respondents as the respondents in these reasons.
By reasons delivered on 21 February 2023,[1] the primary judge granted the respondents' application to remove the second respondent as a defendant. The appellant appeals from this decision by his amended appeal notice dated 12 July 2023. For the reasons set out below, we are of the view that the second respondent should not have been removed as a party at an interlocutory stage in the proceedings. We would therefore grant the appellant leave to appeal and allow the appeal.
[1] Saffari v State of Western Australia [No 2] [2023] WASC 46 (primary decision).

Pleadings

The facts pleaded in the statement of claim, in so far as they concern the second respondent, can be summarised as follows.
(a)The appellant lived in Perth between June 2000 and May 2001, and worked at a restaurant in Fremantle for approximately eight months with the fourth respondent (who was the night shift coffee maker) and Mr Andrew MacKay (who was the manager).[2]
[2] Statement of claim, pars 1 and 8 (Blue AB 46).
(b)On or about 19 May 2001, the appellant left Fremantle and moved to Brisbane.[3]
[3] Statement of claim, par 9 (Blue AB 46).
(c)On 27 September 2001, the third respondent made a report that on 14 September 2001 the appellant had threatened to kill the fourth respondent, and that Mr MacKay had witnessed the threat.[4]
[4] Statement of claim, par 10 (Blue AB 46 - 47).
(d)On 22 March 2002, the third respondent charged the appellant with 'threatening to kill'.[5]
[5] Statement of claim, par 12 (Blue AB 47).
(e)The charge was kept in the Western Australian Information Release Centre (IRC) and the Office of Information Management System (OIM), as the criminal record of the appellant.[6]
[6] Statement of claim, par 13 (Blue AB 47).
(f)The IRC and OIM were the responsibility of the second respondent in his capacity as the principal officer of the Police Force with the decision-making responsibility for the release of information pursuant to 'the WA Police Governance Policy'.[7]
(g)On 19 March 2002, the third respondent stated in a statement of material facts that the appellant had 'the capacity to carry out his threat'. The appellant pleads that this was a false allegation.[8]
(h)On 25 March 2002, the third respondent 'issued' a warrant for the appellant's arrest.[9]
(i)In November 2005, the Australian Federal Police, in carrying out routine background checks for permanent residency applicants, obtained the criminal record of the appellant and contacted the third respondent.[10]
(j)On 24 November 2005, the third respondent provided information about the appellant to the Australian Federal Police, and contacted and provided false information to DIMIA.[11]
(k)The third respondent and the Police Force, without being asked, recommended that DIMIA should not approve the appellant's visa application.[12]
(l)In the period from 2005 to 2006, DIMIA refused the appellant's visa application. That decision was later overturned on appeal in the Federal Court on 6 December 2007. The appellant's visa was then approved on 2 April 2008.[13]
(m)On 8 June 2011, the appellant applied for Australian citizenship for the first time. The application was refused on 6 December 2013 on the ground of the appellant not being of good character.[14] The appellant was unsuccessful in an appeal to the Administrative Appeals Tribunal in relation to this decision.[15]
(n)The appellant made a second application for Australian citizenship, which was refused in 2018.[16]
(o)On 14 November 2018, the charge of threatening to kill was discontinued and on 12 December 2018, the Perth Magistrates Court cancelled the warrant for the appellant's arrest.[17]
[7] Statement of claim, par 14 (Blue AB 47).
[8] Statement of claim, par 15 (Blue AB 47).
[9] Statement of claim, par 16 (Blue AB 48).
[10] Statement of claim, par 18 (Blue AB 48).
[11] Statement of claim, pars 19 - 21 (Blue AB 48).
[12] Statement of claim, par 24 (Blue AB 49).
[13] Statement of claim, pars 26.2 and 27 (Blue AB 49).
[14] Statement of claim, par 34 (Blue AB 51).
[15] Statement of claim, pars 35 and 39 (Blue AB 51).
[16] Statement of claim, par 41 (Blue AB 51).
[17] Statement of claim, pars 49 - 50 (Blue AB 53).
The appellant pleads that the first respondent is liable for a tort that resulted from the second respondent's negligence whilst performing his functions as the Commissioner of Police, whether or not under a written or other law.[18]
[18] Statement of claim, par 51 (Blue AB 53).
In relation to the second respondent, the appellant pleads that:
(a)The second respondent, as the principal officer of the Police Force with the decision-making responsibility for the release of information, knew or ought to reasonably have known the significance of holding accurate information in the IRC and OIM containing criminal records and the consequences of their inaccuracy.[19]
(b)In provision of 'the Duty to voluntarily provide accurate "Criminal Record" of the appellant for a fee payable to the Commissioner of Police', reasonable care should have been taken to convey accurate information regarding the appellant's criminal record, which in this case ought to have been that the appellant did not have a criminal record.[20]
(c)The third respondent and the Police Force falsely generated a 'criminal record' in the appellant's name and provided this to DIMIA, and this record contained false information.[21]
(d)The second respondent was ultimately responsible for maintaining a correct criminal record and owed 'Due Diligence' in providing accurate information, and was liable for 'failing Due Diligence'.[22]
(e)The second respondent owed the appellant a duty pursuant to Part I, s 5 and s 137(5)(a) of the Police Act 1892 (WA) (Police Act), s 5B and s 5C of the Civil Liability Act 2005 (WA) and the common law to ensure that the data maintained by the Police Force was accurate, and to conduct his duties in a manner which did not cause reputational and practical harm to the appellant.[23]
(f)The appellant has suffered injury, loss and damage as a result of the second respondent's negligence.[24]
[19] Statement of claim, par 52 (Blue AB 53).
[20] Statement of claim, par 54 (Blue AB 53).
[21] Statement of claim, pars 56 - 58 and 60 (Blue AB 53 -54).
[22] Statement of claim, par 59 (Blue AB 54).
[23] Statement of claim, par 61 (Blue AB 54).
[24] Statement of claim, pars 62 - 63 (Blue AB 54 - 55).

Primary decision

Respondents' case

The respondents' case before the primary judge was that s 137(3) of the Police Act was applicable on the facts as pleaded by the appellant. Section 137 of the Police Act relevantly provides as follows:
137.Protection from personal liability
(1) This section -
(a) is in addition to section 5 of the Criminal Code Act 1913; and
(b) does not affect any right to recover damages from the owner or driver of a motor vehicle in respect of the death of or bodily injury to a person directly caused by, or by the driving of, the motor vehicle,
but otherwise applies despite any other written law.
(2) This section applies to and in respect of anything done after the commencement of the Acts Amendment (Police Immunity) Act 1999.
(3) An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
…
(5) The Crown is liable for a tort that results from -
(a) anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
…
(6) The Crown's liability under subsection (5) does not extend to exemplary or punitive damages
There was no dispute that the second respondent, as the Commissioner of Police, was a member of the Police Force for the purposes of s 137 of the Police Act.[25] There was also no dispute that the appellant's case as pleaded in the statement of claim did not allege malice on the part of the second respondent.[26]
[25] Primary decision [63] and definition of 'member of the Police Force' in s 136 of the Police Act.
[26] Primary decision [62].
In those circumstances, the respondents submitted that the appellant's pleaded case as against the second respondent was caught by the terms of s 137(3) of the Police Act, and there was no cause of action against the second respondent. Rather, in accordance with s 137(5)(a) of the Police Act, the appellant's cause of action for the allegedly negligent actions of the second respondent was as against the first respondent, the Crown, only.
The respondents submitted that in circumstances where there was no cause of action against the second respondent, then he was neither a proper nor necessary party to the action and ought to be removed as a defendant.[27]

Appellant's case

[27] Primary decision [61] - [67].

The appellant's case before the primary judge was that s 137(3) of the Police Act did not, properly construed, apply so as to deny a cause of action against the second respondent. The primary judge outlined the appellant's case in this regard as follows:
69 It appears from Mr Saffari's submission that he queried the position advanced on behalf of the [second respondent] …. Among other things, Mr Saffari referred to the approach adopted by the High Court in Puntoriero v Water Administration Ministerial Corporation [1999] 199 CLR 575, in construing s 19(1) of the Water Administration Act 1986 (NSW), and the immunity provided by that section. I note that at [4], Gleeson CJ and Gummow J recorded that:
'[The] principal task is to construe s 19(1). This should be done both by looking at the sub-section in the context of the Administration Act as a whole and on the footing that the immunity conferred by such a provision should not 'be carried further than a jealous interpretation will allow', to repeat a statement by Kitto J in Board of Fire Commissioners (NSW) v Ardouin [(1961) 109 CLR 105 [116]].'
70I also understood that Mr Saffari referred to the decisions of the High Court in Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; 109 CLR 105, particularly at [116], and Coco v The Queen (1994) 179 CLR 427, in opposition to the submission made on behalf of the [second respondent] at par 6 that s 137(3) of the Police Act 'denies from the outset the existence of a cause of action in respect of the relevant events'.
71 I understood Mr Saffari to submit that s 137(3) of the Police Act properly construed and in light of these authorities, ought only extend to aspects of the functions of the Commissioner of Police that are done that justify special protection from liability. He submitted that the action attributed to the Commissioner of Police (the act of making available criminal records for a fee) was undertaken by the Commissioner of Police as a volunteer. That is, the Commissioner of Police by his action undertook a voluntary function and not a mandated function which required special authority, and therefore his action was not one which justified special protection from liability and must fall outside the scope of the Immunity afforded by subsection (3) of s 137 of the Police Act. (some citations omitted)
The appellant also submitted that the second respondent ought to remain a party to negate the need to issue a subpoena for him to be called as a witness in the proceedings.[28]

Primary judge's reasoning

[28] Primary decision [73].

It is convenient to set out in full the following relevant substantive paragraphs of the primary judge's conclusions in relation to the respondents' application:
76 I have considered the amended pleading filed by Mr Saffari. There is no plea that anything said to have been done by the Commissioner of Police was done with corruption or malice. Nor is there any plea that what actions were attributed to the Commissioner of Police were done other than while performing or purportedly performing his functions.
77 Having regard to the decision of the Court of Appeal in The State of Western Australia v Cunningham [No 3] at [128] (Buss P and Murphy JA), I am satisfied that when s 137(3) is engaged it confers immunity from action, and on Mr Saffari's pleaded case against the [second respondent], I am satisfied that s 137(3) is engaged.
78 The RSC O 18 r 6 concerns the misjoinder and nonjoinder of parties and r 6(2)(a) provides as follows:
(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a) order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
79 I accept that when regard is had to Mr Saffari's pleas as against the [second respondent] in the amended further substituted statement of claim, in light of the operation s 137(3) of the Police Act, the [second respondent] is neither a proper nor necessary party to the action and the relief pressed on behalf of the [second respondent] is appropriate. A judgment could not be entered against the Commissioner of Police, in respect of whom, by force of s 137(3), an action does not lie.
…
82 When s 137(3) is engaged, it confers immunity from action. The section operates to protect the Commissioner of Police, who at the relevant time was a 'member of the Police Force' for the purpose of that section, with immunity from civil actions in tort in certain circumstances, whereas subsection (5) in effect gives victims of tort redress against the State in circumstances where the member of the Police Force has acted without corruption or malice while performing or purporting to perform the functions of a member of the Police Force. (citations omitted)

Grounds of appeal

The appellant appeals the primary decision on the following four grounds:
1. The Primary Court made an error of law in interpretation and application of s 137(3) of the Police Act 1892 (WA) by finding that:
Section 137(3) of the Police Act 1892 (WA) denies from the outset the existence of a cause of action. (Primary Decision [68(6)])
2. The Primary Court made an error of fact where the evidence was to the contrary by finding that:
Nor is there any plea that what actions were attributed to the Commissioner of police were done other than while performing or purportedly performing his functions, (Primary Decision [76])
and misinterpreted the appellant's plea by finding that:
... It is sufficient to say that I understand Mr Saffari's claim against the Commissioner of Police concerns acts alleged to have been done by the Commissioner of Police while performing or purporting to perform the functions of a member of the Police Force, without corruption or malice. (Primary Decision [80])
3. The Primary Court made an error of law in application of The State of Western Australia v Cunningham[29] inferring that the law confers blanket immunity to a member of Police Force and erred in law by applying The State of Western Australia v Cunningham[30] to the appellant's case where the test could not apply in this instance by finding that:
Having regards to the decision of Court of Appeal in WA v Cunningham, ... I am satisfied that when s 137(3) is engaged it confers immunity from action, and on Mr Saffari's pleaded case against the [second respondent] I am satisfied that s 137(3) is engaged. (Primary Decision [77]).
and by finding that:
..., in light of the operation [of] s 137(3) of the Police Act, the [second respondent] is neither a proper nor necessary party to the action and the relief pressed on behalf of the [second respondent] is appropriate. A judgment could not be entered against the Commissioner of Police, in respect of whom, by force of s 137(3), an action does not lie. (Primary Decision [79]).
4. The Primary Court erred in law by failing to take into account relevant considerations, namely the High Court findings in Puntoriero v Water Administration Ministerial Corporation[31] and Coco v The Queen[32] in circumstances, such as the appellant's case, where the function subject to the claim of tort was not mandated by law.
[29] TheState of Western Australia v Cunningham[No 3] [2018] WASCA 207 [128].
[30] Cunningham [157].
[31] Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 [116].
[32] Coco v The Queen (1994) 179 CLR 427.

The appeal raises the following two issues:
(a)whether the primary judge erred in fact in her understanding of the appellant's pleadings; and
(b)whether, in granting the respondents' application, the primary judge erred in law in relation to the construction of s 137(3) of the Police Act and as to the question of whether the section was engaged on the facts as pleaded in the statement of claim.

Legal principles - joinder

The respondents' application is made under O 18 r 6(2)(a) of the RSC, which provides as follows:
6. Misjoinder and nonjoinder of parties
…
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.
The legal principles regarding joinder were considered by this court in Elovalis v Elovalis[33] and summarised by Corboy J in Wurth Australia Pty Ltd v Burgess.[34] The test imposed by O 18 r 6(2) of the RSC is one of necessity, the question being whether the proposed party's rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action. The rule is designed to avoid unnecessary technicality so that the parties may litigate the real issues between them, in an expeditious, efficient and cost-effective way. The purpose of the rule is to ensure that all matters in dispute can be effectually and completely determined and adjudicated upon. The power contained in O 18 r 6(2) of the RSC is discretionary.
[33] Elovalis v Elovalis [2008] WASCA 141 (S) [4] ‑ [7].
[34] Wurth Australia Pty Ltd v Burgess[2012] WASC 504 [57].
The question of whether a person should remain a party is not only to be answered by reference to whether any relief is sought against that person. As observed by this court in Elovalis v Elovalis:
5… the question of whether the second respondent should remain a party to the proceedings cannot necessarily be answered exclusively by reference to the observation that no relief is sought against him. If the second respondent is a person whose presence before the court is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, it is appropriate that … he remain a party.
6The phrase 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined' should be given a beneficial interpretation; affording to it the widest interpretation its language will permit (Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221 [25]; also see APT Finance Pty Ltd v Bajada [2008] WASCA 73 [34]) …
7Further, the expression 'all matters in dispute' has been held to have an elastic application. In Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34, 38 it was held that the phrase 'all matters in dispute in the proceedings' in a similar provision in the Rules of the Supreme Court 1970 (NSW), should not be construed as limited to matters arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the proceedings.

Disposition

Error of law

This appeal raises a question as to the proper construction of s 137(3) of the Police Act, and whether the appellant's pleaded case falls within the scope of that subsection.
The proper construction of s 137(3) of the Police Act is a question of law which admits only one answer. Accordingly, on appeal it is not necessary for the appellant to demonstrate any particular error of law on the part of the primary judge. When a question of construction arises, it falls to the appeal court to consider that construction afresh and form its own view as to the appropriate construction of the provision in question.[35]
[35] Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [7]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154].
A number of questions arise regarding the construction of s 137(3) and s 137(5)(a) of the Police Act.
The respondents submit that the text confers a broad immunity on a member of the Police Force. The respondents' case is that the text of s 137(3) of the Police Act is broad and is intended to apply to the functions conferred on members of the Police Force by the Police Act and other written laws; functions imposed by the common law; and also functions that might otherwise be described as of an ordinary character, whether or not they require special statutory or other authority. The respondents rely, in particular, on the words 'performing or purporting to perform' and 'whether or not under a written or other law' to support the submission that the subsection covers the widest range of activities undertaken by members of the Police Force.
The respondents also call in aid s 137(1)(b) of the Police Act, which expressly carves out from the general operation of s 137 the right to recover damages in respect of the death of or bodily injury to a person directly caused by, or by the driving of, a motor vehicle. The respondents submit that the inclusion of this subsection is consistent with a broad construction of the scope of s 137(3) of the Police Act and its extension to matters other than those requiring specific or other authority.
However, a question of construction arises as to whether the reference in s 137(3) and s 137(5)(a) of the Police Act to 'anything done by a member of the Police Force' while 'performing or purporting to perform the functions of a member of the Police Force' refers to all acts performed by a police officer in their official capacity, or only to functions which will, of their very nature, involve what would otherwise be tortious conduct. For example, the exercise of the power of arrest or trespass. One possible construction of the subsections is that they do not extend to the negligent performance of functions which would otherwise not constitute tortious conduct. If this construction is preferred, s 137(3) of the Police Act may not be engaged in the present case.
The appellant raises a further question of construction submitting that, in accordance with the High Court authorities of (for example) Board of Fire Commissioners (NSW) v Ardouin,[36] Puntoriero,[37] and Coco,[38] immunity provisions such as s 137(3) of the Police Act should be narrowly construed and such provisions do not, absent clear language, extend to activities of an ordinary character that are not expressly provided for or authorised by either a statute or the common law. The appellant submits that the reference to 'anything that the member has done' only applies to functions which require special police authority or powers so as to make it a statutory or common law duty imposed on a member of the Police Force. The appellant submits that the scope of s 137(3) of the Police Act is therefore limited to actions of a police officer occurring while that officer is performing the functions of a member of the Police Force. The appellant emphasises the inclusion of the word 'while' (as opposed to the word 'as') and submits that this excludes the pleaded action, being the provision of a background check for a fee, where there is no legal requirement for the second respondent to perform this task. Instead, the second respondent voluntarily assumed the responsibility of providing the background check information.
[36] Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105, 110 and 116.
[37] Puntoriero [33] - [35] and [116].
[38] Coco (436).
The respondents accept the general principles as set out in these authorities but submit that the question remains one of construction of the text of the relevant legislative provisions. We also observe that a question may arise as to whether the general principles set out in these High Court authorities are applicable to a provision such as s 137(3) of the Police Act, in the circumstances where the effect of s 137(3) and s 137(5)(a) of the Police Act is not to provide complete immunity in relation to the tortious conduct of a member of the Police Force, but rather to allocate legal responsibility for that tortious conduct.
There are no legal authorities which have considered the nature of the actions falling within the scope of s 137(3) of the Police Act. Whilst s 137 was the subject of consideration in Cunningham, this court was not called upon in that case to consider the precise meaning and scope of this subsection. Rather, that case concerned the interrelationship between s 137(3) and s 137(5)(a), and the extent to which the Crown is jointly liable to pay compensatory and aggravated damages in circumstances where findings of malice have also been made. Neither of the two questions of construction referred to above were expressly considered.
Counsel for the respondents properly accepted that the scope of s 137(3) of the Police Act was not the subject of specific consideration in Cunningham but submitted that there was nothing in that decision which would suggest anything other than a broad interpretation to be appropriate. In particular, the respondents relied on the following passage of the joint judgment of Buss P and Murphy JA:[39]
For present purposes, the following observations may be made. First, s 137(3) provides that an 'action does not lie' in the circumstances referred to. It is directed principally to the protection of police officers acting without corruption or malice. Section 137(3) operates, in general terms, (not unlike its predecessor, s 57A) positively to provide immunity from 'action' in tort, to police officers performing or purporting to perform their functions for anything done without corruption or malice. When s 137(3) is engaged, it confers immunity from action. It alters the position at common law, insofar as and to the extent that under the common law, an action could lie against a police officer in tort even where the police officer has acted without malice or corruption. It nevertheless leaves the common law to apply to torts where police officers in the performance, or purported performance, or their powers and duties, act with corruption or malice. The liability of police officers in such circumstances could include liability for both aggravated and exemplary damages.
[39] Cunningham [128].
Whilst this passage refers to s 137(3) of the Police Act in broad terms, it does not consider or resolve the specific questions of construction identified above.
A difficulty arises in resolving these questions of construction in the present circumstances. The respondents' application was made and heard at a point in the action where only a statement of claim had been filed. No defence had been filed, no evidence given, and no findings of fact made as to the precise actions of the Commissioner of Police. In these circumstances, it is difficult to consider the extent to which those actions may have been authorised by the Police Act, the common law or any other written law, or otherwise fall within the scope of s 137(3) of the Police Act.
We do not consider it appropriate for this court to attempt to resolve the construction issues and the application of s 137(3) and s 137(5)(a) of the Police Act at this interlocutory stage in the proceedings and absent clearly articulated and resolved facts. We also consider that there were difficulties in doing so in the primary proceedings.

The respondents submit that it is not necessary to resolve the precise scope of s 137(3) and s 137(5)(a) of the Police Act in the present case. The respondents submit that, whatever the precise scope of these subsections, the appellant's case in negligence against the second respondent is premised on actions of the second respondent in his capacity as the Commissioner of Police (and not in his personal capacity) and therefore they will fall within the scope of the subsections. Whilst the statement of claim does plead that the actions of the second respondent were undertaken in his capacity as the Commissioner of Police (see pars 14, 52, 54, 59 and 61 of the statement of claim), we do not consider that this either precludes the appellant from advancing the questions of construction identified above, or results in the automatic application of the subsections to the appellant's case against the second respondent. The question is not only whether the actions were undertaken by the second respondent in his capacity as the Commissioner of Police, but also whether, properly construed, s 137(3) and s 137(5)(a) of the Police Act apply to the particular pleaded actions.
For completeness, the appellant submitted that there had been no application to remove the third respondent as a party, notwithstanding that the first respondent is also indemnifying the third respondent. The appellant submitted that there was no difference between the second and third respondents. However, we observe that the position of the second respondent is different to that of the third respondent in so far as the appellant has pleaded malice on the part of the third respondent but not the second respondent. Therefore, s 137(3) and s 137(5)(a) of the Police Act do not apply to those pleaded aspects of the third respondent's conduct, and the third respondent remains a proper party, even if being indemnified or represented by the solicitors for the first respondent.
In light of the above matters, we consider that the primary judge erred in granting the respondents' application to remove the second respondent as a party, at an interlocutory stage of the proceedings and in circumstances where there have been no findings of fact and the scope of the relevant legislation had not been the subject of judicial determination.

Error of fact

It is also necessary to say something about the appellant's other ground of appeal, being that the primary judge made an error of fact in her Honour's understanding of the appellant's pleadings. We do not consider that the primary judge made such an error.
The primary judge concluded that the appellant's pleaded case against the second respondent concerned acts alleged to have been done by the second respondent in his capacity as the Commissioner of Police, whilst performing or purporting to perform the functions of a member of the Police Force.[40] This is consistent with the appellant's pleaded case against the second respondent, which is that the second respondent, in his capacity as the Commissioner of Police, was the officer responsible for the IRC and OIM and the accuracy of the information contained in each system, and was responsible for taking reasonable care to ensure the accuracy of information provided voluntarily from those systems (see pars 14, 52, 54, 59 and 61 of the statement of claim).
[40] Primary decision [76] and [80].
The real issues raised by this appeal are not whether the primary judge made an error of fact, but rather the proper construction of s 137 of the Police Act; whether s 137(3) and s 137(5)(a) of the Police Act apply to the specific pleaded actions of the second respondent; and whether these issues should be resolved at the interlocutory stage of this particular action.

Leave to appeal

The primary orders are interlocutory in character, and therefore leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA). The question of leave to appeal was referred to the hearing of the appeal.[41]
[41] Order of Mitchell JA and Vaughan JA 26 May 2023 (White AB 6).
This court summarised the general principles governing the grant of leave to appeal from interlocutory decisions in the decision of Arvind Pty Ltd v Lamers[42] and recently reiterated that summary in Low v Romaro[43] and Ogbonna v Qantas Airways Ltd.[44] Generally, leave to appeal from an interlocutory decision should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave, and a substantial injustice would be done if the decision remained undisturbed. The requirement of 'substantial injustice' is not usually satisfied by interference with procedural rights or procedural disadvantage, and instead looks to whether substantive rights are adversely affected. Ultimately, however, leave may be granted whenever the interests of justice require it.
[42] Arvind Pty Ltd v Lamers [2020] WASCA 47 [15] ‑ [17].
[43] Low v Romaro [2023] WASCA 155 [27] ‑ [30].
[44] Ogbonna v Qantas Airways Ltd [2023] WASCA 168 [13].
For the reasons outlined above, we are satisfied the primary decision is attended by sufficient doubt to justify the grant of leave. In all the circumstances we are also satisfied that it is in the interests of justice that leave to appeal be granted.
The respondents did not seek summary judgment or to strike out the appellant's claim as against the second respondent. However, the ultimate effect of the application is to remove from the appellant his ability to make submissions and run his desired case regarding the application of s 137(3) and s 137(5)(a) of the Police Act in the context of the pleaded facts. The pleadings (taken together with the appellant's submissions on appeal) advance a case in negligence and seek relief against the second respondent (in addition to seeking relief against the first respondent). The effect of the primary decision is to prevent the appellant from advancing the case he wishes to run and from seeking relief against the second respondent.
The respondents submit that there is no substantial injustice if the decision is not reversed, as the removal of the second respondent as a party does not prevent the appellant from pleading and running his case of negligence on the part of the second respondent. The only difference is who is ultimately responsible for any negligence and from whom the appellant can seek relief. The respondents also submit that the State is not an impecunious litigant, and therefore this is not a case where there is a risk of the appellant not receiving the fruits of any successful judgment.
Whilst these submissions have some merit, we do not consider they fully address the effect of the primary decision. First, the respondents' submissions do not address the question of the appellant being prevented from seeking relief against the second respondent and having his case as to the scope of s 137(3) and s 137(5)(a) fully argued and considered following a trial. Secondly, the submissions are contingent upon the first respondent pleading and running a defence which accepts liability for any established negligence on the part of the second respondent, and this position not changing over the course of the action. Whilst counsel for the respondents did not have instructions to offer an undertaking in relation to the first respondent's position, the application to remove the second respondent is premised on the basis that the first respondent is the party responsible for any established negligence on the part of the second respondent (assuming the pleading of no malice continues). However, as this action is at a very early stage, it is not possible to exclude a change in this position as the facts are investigated and pleaded and the matter otherwise proceeds. If the first respondent were, at a later stage, to change its position in relation to the application of s 137(3) and s 137(5)(a) of the Police Act, this could leave the appellant, the other parties and the court in the position of not having the proper parties joined to the action (and needing to take steps to re-join the second respondent with possible consequences concerning costs and time).

Further, the proper construction of s 137 of the Police Act will be a matter for the determination of the trial judge rather than a matter for agreement between the parties. Even if the first respondent maintains its indicated position at trial, a trial judge would need to give effect to his or her own view of the provision even if that departed from the position adopted by the parties (subject of course to according procedural fairness to the parties). At this stage we cannot exclude the prospect that the appellant's claim against the State in negligence, in relation to the maintenance and provision of criminal records, might fail on the basis that the State is not the negligent party.
In all the circumstances, we consider that the ultimate effect of the primary decision is to prevent the appellant from advancing the case he seeks to run and from seeking relief from the second respondent. This has the potential to adversely affect the appellant's substantive rights in relation to his claim in negligence in relation to the maintenance and provision of criminal records. Further, this has occurred at an interlocutory stage in the proceedings, and in circumstances where no findings of fact have been made and where the question of the scope and construction of s 137(3) and s 137(5)(a) of the Police Act has not been the subject of judicial determination. We therefore consider that it is in the interests of justice that leave to appeal be granted.

Name of the second respondent

A final issue which arises in the present case is whether the second respondent has been correctly named. The writ of summons and statement of claim refer to the second respondent by his name. However, the matters pleaded in the statement of claim concern matters undertaken by the second respondent and his predecessors in their capacity as the holder of the statutory office of the Commissioner of Police (and not in their personal capacities). In these circumstances, we consider that the second respondent has been incorrectly named, and it is appropriate that the name of the second respondent be amended to reflect the title of the applicable statutory office. The appellant did not seek to be heard on this issue, and there was no objection to this course of action by the respondents.

Conclusion

For the above reasons, we consider that the second respondent should not have been removed as a defendant at an interlocutory stage in the proceedings. Rather, the underlying issues regarding the scope of s 137(3) and s 137(5)(a) of the Police Act should be determined at trial on the evidence and following full argument as to the facts and the law. We would therefore grant the appellant leave to appeal and allow the appeal.
However, it is important to observe that nothing in these reasons should be taken as suggesting any particular answer to the questions of construction and the application of s 137(3) and s 137(5)(a) of the Police Act to the pleaded case. These are matters to be determined at trial.
Orders to the following effect should therefore be made:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.Order 1 of the orders made in CIV 3183 of 2019 on 21 February 2023 is set aside and the following orders are substituted:
(a)The second, third and fourth defendants' application for an order that the third defendant be removed or cease to be a party to the action is dismissed.
(b)The description of the third defendant in the action be amended to 'The Commissioner of Police'.
4.Order 4 of the orders made in CIV 3183 of 2019 on 21 February 2023 is amended to provide as follows:
The plaintiff have leave to replead his claim in accordance with the reasons for decision now published and in accordance with the Rules of the Supreme Court 1971 (WA) O 20 and in accordance with the reasons of the Court of Appeal in Saffari v The State of Western Australia [2024] WASCA 77.
5.Order 5(b) of the orders made in CIV 3183 of 2019 on 21 February 2023 is set aside.
We will hear further from the parties in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
28 JUNE 2024