Skuse, E.T. v The Commonwealth of Australia

Re: EDWARD THOMAS SKUSE
And: THE COMMONWEALTH OF AUSTRALIA
No. NTG 7 of 1985
Tort

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Northrop J.
Lockhart J.

CATCHWORDS

Tort - negligence - barrister in courthouse shot by intruder - absence of security guard - whether Commonwealth under general duty of care to plaintiff - whether liable as occupier of courthouse - whether Commonwealth vicariously liable for failure of court staff to apprehend intruder - whether particular facts gave rise to duty of care - responsibility of Commonwealth for court security discussed - whether police negligent in their response to alarm - Commonwealth liability for actions of police discussed.

Evidence - Admissibility of telex between Commonwealth police - whether admissible to prove state of knowledge of Commonwealth.

Practice & Procedure - production of document late in course of trial - whether adjournment should have been granted.

Judiciary Act 1903 s.56, s.64

Home Office v Dorset Yacht Co.Ltd. (1970) A.C. 1004 cons.

Geyer v Downs (1977) 138 C.L.R.99 cons.

Groves v The Commonwealth (1981) 150 C.L.R. 113 cons.

The Commonwealth v Introvigne (1982) 150 C.L.R. 258 cons.

Smith v Leurs (1945) 70 C.L.R. 256 cons.

Sutherland Shire Council v Heyman (1985) 59 A.L.J.R. 564 cons.

Davidson v Walker (1901) l S.R.(N.S.W.) 196 cons.

Enever v The King (1906) 3 C.L.R. 969 cons.

Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 C.L.R. 113 cons.

Hackshaw v Shaw (1984) 59 A.L.J.R. 156 cons.

Papatonakis v Australian Telecommunications Commission (1985) 59 A.L.J.R. 201 cons.

HEARING

SYDNEY
#DATE 16:10:1985

ORDER

The appeal be dismissed.
The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

The plaintiff in this case sued the Commonwealth for negligence in respect of injuries he suffered when on 22 May 1975, as a practising barrister, he was shot by a person, since convicted, inside a courtroom of the Alice Springs courthouse. The judge in the case (Muirhead J.) had at the time taken a short adjournment but there were a number of people in the courtroom.

The present case came before the Supreme Court of the Northern Territory, constituted by Nader J. His Honour described the scene in the courtroom prior to the shooting:

"Mr. Wessells, the acting Sheriff of the Supreme Court, was standing next to the jury box about half way up the courtroom on the northern side. He was talking with Mr. Pauling, a Darwin barrister, sitting in the front row of the jury box on the same side of the courtroom in line with the bar table. Mr. Kennedy, the court orderly, was standing between the dock and the witness box slightly in front of the bar table with his back against the southern wall. Mr. Hitchens, the prisoner, was sitting in the dock which was located against the southern wall almost level with the bar table. Mr. Noll, a prison officer, was standing beside the prisoner with his back to the wall between the public entrance and the prisoner. Miss. Totani, the recording monitor, was standing behind her desk, against the southern wall between the public door and the prison officer Noll. Acting Deputy Superintendent Boyle, a prison officer, was standing against the southern wall approximately one and a half metres towards the bench from the public entrance. The plaintiff was robed and seated towards the left-hand end of the bar table studying some notes."

The prisoner (Mr. Hitchens) was before the court for sentence, and the plaintiff was representing him. The assailant has been called throughout as "Prus", an abridgement of his name, Zbigniew Alexander Prus-Grzybowski. He was in a particularly agitated state precipitated, it would appear, by a letter he had opened that morning, but which was not in evidence. It apparently threatened him with eviction from his place of residence. He was looking for another legal practitioner, Mr Dean, who had acted for Prus' landlord in the litigation in which he had been unsuccessful. He mistook the plaintiff for Mr Dean. The latter was not in the courthouse at the time. Prus gave up the rifle to a prison officer immediately after the shooting and was arrested shortly thereafter.

Prus had expressed or displayed feelings of violence before the shooting. He had written to the Attorney-General for the Commonwealth from Alice Springs a long letter dated 2 January 1974 (received on 10 January 1975), stating his grievances at length, if somewhat incoherently. The second paragraph read:

"Clearly I will kill, not taking into account any consequences at least two persons or rather bastards, both of them lawyers: "Mr. P. Dean and "Mr." Paul Everingham; if I go completely berserk I will kill all and everybody connected with the so called "justice" and "law". There will be no need for any further proceedings against anybody else or me for after doing that I will kill myself."

The letter indicated that copies were being sent to the Minister for Health and the Minister for the Northern Territory. There was no indication of when, where, or how any killing would take place. So far as is known, no action was taken on the letter. There was no evidence before Nader J. of Prus being violent on any earlier occasion, by the use of firearms or otherwise.

On receiving judgment against him in the tenancy matter, delivered by Mr G. F. Hall S.M., a few days before 22 May, he said in court that he would shoot the magistrate. Seemingly, no action against Prus was taken in respect of that incident.
On the morning of 22 May Prus left his home, several miles out of Alice Springs, with the rifle, in circumstances which led his daughter to ring the police promptly and inform them that her father was travelling to town intending to kill someone. The police acted at once, but failed to intercept Prus on his way into town. A short while later Prus entered the offices of Paul Everingham and Co., of which firm Dean was a partner, brandishing the rifle and calling for Dean. Dean not being there, Prus went to the courthouse. Staff of the firm immediately advised the police, and said that he was on his way to the courthouse. Prus arrived there, ahead of them, entered the courtroom, and wasted no time in firing two rounds, one of which was aimed at and struck the plaintiff. There was no policeman or orderly on duty at the entrance to the courthouse or courtroom. One orderly was outside, but was sitting on a garden seat with his back towards the approach to the building, reading a newspaper.
His Honour found that there was a duty of care owed by the Commonwealth, but no negligence. I respectfully agree that the Commonwealth was not negligent, for its own acts or omissions or for those of anyone else, but I am also of the view that no duty of care was owed by it.
A duty of care, it is said, arises from the responsibility of the Commonwealth for the administration of the system of justice, alone or combined with the fact that it was the occupier of the courthouse. It is submitted (in the written submissions of the appellant) that -

"It (the Commonwealth) knew or ought to have known that persons with grievances (either reasonable or unreasonable) against members of the legal profession and the judiciary may be about the courthouse and that this was an obvious source of danger. It well knew that such persons (particularly if unbalanced) may seek out and find such members at the courthouse".

It is added that -

"In the circumstances of the known risk as evidenced by the letter to the A-G, the threat to Hall, S.M. (and the observations conveyed to the Commonwealth's agents - Commonwealth Police) there was an obvious call for special vigilance at the Courthouse having regard to the fact that Dean regularly appeared at the Court and that Prus had expressed extreme dissatisfaction with the system and had threatened mayhem to all those concerned with justice and the law at Alice Springs".

At some times in the argument it was put that the duty was owed to people having a function before the court (such as barristers, and not excluding judges), at other times the duty was said to extend to all in, or in the vicinity of, the court- room.
A number of cases were cited to support the existence of a general duty of care in the Commonwealth. None were directly in point, or dealt with the same or similar fact situations as the present. I shall deal with the cases in the order in which they are set out in the notes of submissions. Might I pause to say how appreciative I am of the time and trouble obviously expended on those submissions. I am sure my colleagues share the same sentiment.

(1) There are cases imposing liability on a school, or its headmaster, or the authority conducting the school, for injuries sustained by students. In Geyer v. Downs (1977) 138 CLR 99, for example, it was held that a headmaster owed a duty to the girls in his school to ensure that the playground was adequately supervised.

The duty in this and similar cases turned upon the fact that children are in need of care, and that during their time at school, this has to be provided by the school. A passage in the judgment of Winneke C.J. in Richards v. Victoria (1969) V.R. 136 at pp.138,9 was approved:

"The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury."

In The Commonwealth v. Introvigne (1982) 150 CLR 258, the Commonwealth was held liable, apart from any consideration of vicarious responsibility, to provide a safe and adequately supervised playground at a school established and conducted by it. To the need for care of the children was added the need to have regard for their mischievous nature, and other facets of their customary behaviour.

(2) The liability of a prison authority for the safety of prison inmates is well established (see cases collected in Groves v. The Commonwealth (1981-1982) 150 CLR 113 at p 126).

The propensity of fellow prisoners to do violence was the central factor in this particular case, but the fact that the prisoner is confined and subject to regulation has been a major factor in other cases.

(3) In Home Office v. Dorset Yacht Co.Ltd. (1970) AC 1004 it was held that officers in charge of Borstal boys had a duty of care not to permit them to escape and do damage.

The risk of the Borstal trainees doing damage if they escaped, and going on a rampage, was the central factor in this case.

United States authorities were cited, and I shall return to these later.
For the respondent, it was submitted that in general one man is not under a duty of controlling another so as to prevent him doing injury to a third, and reliance was placed on the statement of Dixon J. to that effect in Smith v. Leurs (1945) 70 CLR 256 at p 262. Reliance was also placed on Sutherland Shire Council v. Heyman (1985) 59 ALJR 564 per Gibbs C.J., and per Mason J., a case in which the existence of a duty of care by a Council was considered, in relation to the inspection of buildings by its officer, or failure to carry out such inspections.
Davidson v. Walker (1901) 1 SR (NSW) 196 was not cited, but it contains dicta unhelpful to the appellant's case. I quote from the judgment of AH.Simpson J. at p 212:

"I do not think the Claims Against the Government Act, 39 Vic. No. 38, repealed and re-enacted by 1897 No.30, affects the question That Act, no doubt, extended the rights of private persons against the Government by making the Government liable to be sued for a tort: Farnell v. Bowman (12 App.Cas.643), but I do not think it was intended to put the Government in the same position as private persons. If it were, this would amount to submitting to the control of a jury the exercise of various important functions of Government, such as the administration of military matters, of justice, the control and management of prisons, lunatic asylums, public schools, etc."

Some of the examples given must now, of course, be read subject to the decisions of the last twenty years or so.

Although the matter was not discussed in argument, it seems established that s.56 of the Judiciary Act 1903 extends to a case in which it is sought to make the Commonwealth directly liable in tort (see, as an example, Introvigne 's case). A case of vicarious liability was put, but in my view could not succeed. There is evidence that the court orderlies, and other staff, had no responsibility for security at the courthouse.
The appellant stated in a number of ways the duty of care relied on. It seemed to me to have as one ingredient, an alleged responsibility to maintain courthouses safe from violent intruders, - an element of what might be regarded as its broad function to maintain law and order, or to administer justice. I think it is plain that no duty of care of this generality exists, except, in a sense, to the public at large. Reliance was placed on the Commonwealth being an occupier of the premises (this was conceded), but this does not take the matter further. There was nothing flowing from its occupancy which created a duty of care to the appellant related to what happened. No defect or deficiency in relation to the court premises was alleged. The fact that the Commonwealth was occupier of the premises was doubtless relevant, but only as indicating that it probably could carry out the broad duty said to exist.
On a factual plane, it is submitted that the Commonwealth had a duty to have someone, such as a police officer, on duty at the entrance to the Alice Springs courthouse, to intercept anyone who it appeared might offer violence to anyone in it. Given that a duty to similar effect might arise in particular circumstances, there seems to me no sufficient basis for saying that it existed in the present case. The letter to the Attorney-General had been written over 4 months before. Assuming (which I doubt) that it was taken seriously, it still left a wide range of possibilities as to what might happen, and plainly the Commonwealth could not arrange protection in relation to all of these. There was no particular reason why the Alice Springs courthouse should be selected as a likely site, and in any event, even if precautionary measures were taken originally, it would be unreasonable to expect that they should continue indefinitely. In fact, the named and intended targets were not at the time at the courthouse or in its vicinity. The plaintiff was not a person known to have been threatened.
I should interpolate at this point that there was and is in issue the admissibility of a telex of 7 February 1975, passing between Commonwealth police. Leaving aside transmission detail, it reads as follows:

"Reference to Z.A.Prus Cszybowski (sic) author of letter to Attorney-General threatening lives of Northern Territory solicitors Everingham and Dean. Additional information from Alice Springs police suggests threats should be taken sriously (sic) as Cszybowski is considered dangerous and has threatened to kill Sergeant Woodcock of N.T.police. He is regarded as a radical and had made numerous complaints re police behaviour. Alice Springs police feel his mental condition is deteriorating, and a situation as outlined in his letter could easily lead him to violence."

The document was not admissible to prove the facts asserted therein. Its admission was pressed on the footing that it was notice to the Commonwealth that the threat should be taken seriously. This was a matter of someone's opinion, but so closely allied to the facts upon which it seems to have been based, that it was of little value in evidence without proof of those facts. It was nonetheless a warning. It was a warning to the police, apparently to police headquarters in Canberra. It could be said that there was no duty to pass this on to the Attorney-General, or to the government generally, and notice to police headquarters is not necessarily notice to the Commonwealth. I am not sure that I would in this case accept the argument that it was not information placed in the hands of the government, but even if the government were regarded as having a warning the circumstances would still fall far short of creating a duty of care in the Commonwealth to the appellant.
The appellant seeks to show a duty of care flowing from a responsibility to a wide category of persons, because of the threat respecting Everingham and Dean. The telex tends to indicate the scene, as at February, in Alice Springs, but what should have been done there to protect people in the position of the appellant, or to reduce the risk of violence occurring in the courtroom was a matter for the government, - acting, as appropriate, in consultation with the judiciary.
The learned judge refused the appellant an adjournment to see if he could prove the matters stated in the telex, or some of them, and it is submitted that he erred in this respect. The ground of the application for adjournment was late discovery of the document. The grant or refusal of an adjournment is a highly discretionary matter, and, apart from the inutility of the proof of the further matters, is covered by what I have said. I do not see that this court could interfere with his Honour's decision.
Additional circumstances do not add sufficient to create a duty arising in the particular case. So far as appears, the threat to the magistrate, Mr Hall, was not taken seriously by anyone, but in any event it was specifically directed to him. The warnings to the police on the morning in question were followed up promptly, and no complaint can be made on that score. Reference was made in argument more than once to the fact that one orderly was reading a newspaper, but in my view this adds nothing to relevant considerations.
Reference was made to a number of United States decisions and one from Canada: Downs v. United States (1975) 522 F 2d. 990 (government liability for management of highjacking by FB.I.); Horsley v. McLaren ("The Ogopogo") (1972) SCR 441,(duty of master of a ship to rescue a passenger who had fallen overboard); Harris v. Pennsylvania Railway Co. (1931) 50 F 2d.866 (duty of employer to go to rescue of employee) and Ayres & Co. v. Hicks (1942) 40 N.S. 2d.334 (duty of an occupier to go to rescue of guest). Even the short summaries given indicate the differences between those cases and the present.
Prosser and Keeton on Torts (5 ed.para.131, p.1049) (1984) contains the following summary comment on United States law:

"Thus, though the public entity may be held liable for negligent police shootings or automobile collisions, a failure to provide police protection, like the failure to provide fire protection, is usually immune, either on the ground that the decision to deny such protection is a discretionary or basic policy decision or on the ground that the duty to protect is owed to the public at large and not to any particular person who might be injured."

United States authorities are also discussed in Davis, Administrative Law Treatise (1958) Vol.3 para.25.13, and, in a detailed notation in 46 American Law Reports (3d), p.1084 (1972 and Supp. 1984). See also note 94 Harvard Law Review 821 (1981). At pp.822, 3 of the last-mentioned note appears the following observation:

"No jurisdiction recognizes liability of government or its law enforcement officers for failure to prevent crime absent a special relationship between the police and the victim."

The subject being dealt with is the liability in tort of central government in relation to a matter which is governed by wide policy considerations. It comes within what might be called the basic functions of government. Arrangements with regard to police protection of courts, or citizens within them, are, in general, subject to political but not legal sanctions. If there were a duty it would not be owed to a single individual such as Mr Skuse, or persons similarly placed. The position can of course change if a particular situation arises creating a duty to act, but the present facts fall far short of creating any such duty. If the Commonwealth were to be liable in a particular situation, it would I imagine be likely to arise vicariously, because of the failure of an officer to act when his position and the circumstances created a duty for him to do so. In this connection, it is to be borne in mind that in general the Commonwealth is not liable vicariously for acts or omissions of police officers (Enever v. The King (1906) 3 CLR 969; Attorney General for New South Wales v. Perpetual Trustee Company (Limited) (1955) 92 CLR 113 at pp 118,120). In the present case, as I have already indicated, there was not in my view negligence on the part of any person.
In my view the appeal should be dismissed, with costs.
In relation to the costs of the proceedings of the trial, the normal order would be that the plaintiff (appellant) pay them. In the present case the learned judge, having delivered judgment, said that he "reserved" them, for reasons, as he said, "that need not be stated here." The formal order stated that the question of costs was reserved. No challenge has been made to this order, and no argument addressed to us on the question. In the circumstances, it seems to me that we are not called upon to deal with the matter.

JUDGE2

I would dismiss the appeal for the reasons given by Lockhart J. and have nothing further to add.

JUDGE3

On 22 May 1975, at about 9.45 a.m., Edward Thomas Skuse, the appellant, was shot in the back by Zbigniew Alexander Prus-Grzybowski (who has been referred to throughout the proceedings as "Prus", so I shall adopt the same description) with a .22 calibre semi-automatic rifle. At the time of the shooting the appellant, a legal practitioner, was seated at the bar table in the Courthouse at Alice Springs in barrister's robes with his back to the public entrance to the Courthouse and to Prus. Seconds before the shooting Prus had parked his car outside the Courthouse, entered it through a public entrance and proceeded to the Courtroom. He shouted "Where is that Dean? - where is Dean - are you Dean?" or words to that effect, meaning a legal practitioner by that name against whom he bore considerable ill feeling, and then shot the appellant. It appears that Prus thought that the appellant was Mr. Dean. Soon after the shooting Prus was disarmed by a prison officer outside the Courtroom but within the Courthouse building. No one attempted to intercept him until then. The appellant was seriously injured as a result of the shooting.

The sittings of the Supreme Court at Alice Springs commenced on that eventful day at about 9.30 a.m.. The presiding Judge retired from the Bench at about 9.40 a.m. to enable the Crown to assemble documents relating to the criminal case then proceeding. Only a short interruption to the proceedings was expected. The shooting of the appellant occurred during that break.
Early in the morning of the day of the shooting, Prus drove to Alice Springs from his home in Emily Gap Road, about six miles to the east of Alice Springs. He went to the Alice Springs Post Office and, upon reading a letter which he had opened, became angry and drove in a rage at speed to his home. He there obtained the .22 calibre rifle, returned to his car and drove off at high speed to Alice Springs. Immediately after his departure from the house, Prus's daughter telephoned the Alice Springs Police Station and informed the police that Prus was travelling to town intending to kill someone.
Soon after this two police officers left the Alice Springs Police Station and drove in a car towards Emily Gap Road for the purpose of intercepting Prus. They did not see Prus.
At about 9.35 a.m. Prus entered the offices of Messrs. Paul Everingham & Co., Barristers and Solicitors brandishing his rifle and calling for Mr. Dean. He was told by staff that Mr. Dean was not in the office. Prus left the office and proceeded by car to the Courthouse. Staff in the office telephoned the Alice Springs Police, reported Prus's conduct to them and said that Prus was proceeding to the Courthouse. Shortly thereafter the events occurred at the Courthouse which led to the shooting of the appellant. The Alice Springs Police Station was less than 100 metres from the Courthouse. Police officers went to the Courthouse but arrived there just after the shooting had taken place. Prus was taken into custody by the police.
In 1975 the Courthouse at Alice Springs was an old building on the corner of two streets. The physical description of the Courthouse is fully stated by Nader J. in his reasons for judgment, so I need only refer to some of its features. The Courthouse accommodated the office of the Clerk of Courts, a waiting room leading to the Courtroom, the Courtroom itself, Judges' chambers and a flat known as the Judges' flat where visiting Judges stayed from time to time when hearing cases in Alice Springs and various other court offices and facilities including a robing room. The Courtroom was used by the Supreme Court for the hearing of its cases in Alice Springs, both civil and criminal, and by the local Magistrate who held various offices in addition to those attaching to the Office of Stipendiary Magistrate. He sat as a court of summary jurisdiction hearing both civil and criminal claims and as the Mining Board and perhaps in other capacities.
There were four external doors leading into the Courthouse including the public entrance at the south-eastern end of the Courthouse which opened into a waiting room from which access was gained by the public through a doorway to the Courtroom itself. This was the means whereby Prus gained access to the Courtroom on 22 May 1975.
Six doors led into the Courtroom itself. The public entrance was on the southern side of the Courtroom at its eastern end which is the door through which Prus entered. Other doors linked the Courtroom with various offices and rooms associated with the Court's activities including the Judge's chambers. At least one and probably two of the doors were not in use in May 1975.
When the presiding Judge retired briefly at about 9.40 a.m. on 22 May 1975 the following persons were present in the Courtroom:-

- the Acting Sheriff of the Supreme Court

- a Court Orderly

- two Prison Officers

- the recording monitor

- the prisoner involved in the case proceeding before the Supreme Court that morning; and

- the appellant and another legal practitioner

Another court orderly was sitting on a bench reading a newspaper near the Parsons Street side of the Courthouse. It appears that his services were not required in the Courtroom that morning.
Prus had some degree of association with lawyers and the courts. He wrote a letter to the Attorney-General of the Commonwealth which was received by his Department early in January 1975 and which contained a series of outpourings against the legal system in general and against Mr. Dean and Mr. Everingham in particular. The letter said more than once that Prus intended to kill Mr. Dean and Mr. Everingham and possibly everybody connected with "the so-called justice and law". In the months before the shooting Prus had been involved in litigation in which he had been unsuccessful. Mr. Hall S.M., the Magistrate then presiding in Alice Springs at the same Courthouse, gave judgment against Prus in that litigation a few days before the shooting of the appellant. After Mr. Hall had given judgment Prus said to him that he would shoot him. This was said in the Alice Springs Courthouse itself.
The appellant sued the respondent, The Commonwealth of Australia, for damages for negligence arising out of the shooting on 22 May 1975. The case was heard by the Supreme Court of the Northern Territory (Nader J.). His Honour found that the Commonwealth owed a duty to take care to persons required to work in the Alice Springs Courthouse. He based that finding upon the following matters:-

(a) that the Commonwealth "was the occupier of and was in a position to exercise control over the Courthouse and over persons in and about the Courthouse";

(b) that "a number of persons, including the plaintiff (the appellant), were required by their occupations to be present in the Courthouse at material times"; and

(c) that "any reasonable occupier in the position of the defendant (The Commonwealth) would have known that court proceedings generate high emotion".

His Honour approached the question on the basis that those considerations "constitute a relationship of proximity such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff ...".
His Honour found that in all the circumstances the possibility of an attack upon a person in the appellant's position was foreseeable. His Honour found, however, that there was no breach of the duty of care owed by the Commonwealth. He based this finding on his view that a "reasonable man" would not have done anything beyond what was in fact done and that the:

"dominant factor influencing this conclusion is the extreme unlikelihood of an occurrence of the relevant kind. I have also considered that such a reasonable person would be aware that there would frequently have been, in any event, policemen in or about the Court, prison officers, orderlies and others. Although the role of such persons was not related to the risk in question, they could be expected to have some deterrent effect by their very presence."

The appellant appealed to this Court from the Supreme Court's judgment.
The common law imposes special duties upon an occupier of premises to persons who enter upon them as invitees, licensees or trespassers. Whether those special duties may be replaced by a general duty of care or whether an occupier owes a general duty of care to persons entering the premises in a special category independently of any special duty or whether the special duties of care are merely instances of the general duty of care arising out of the general law in the circumstances of the particular case are at the forefront of a debate that has excited the attention of the courts of this country and of the United Kingdom and of learned academic writers. There has been considerable difference in judicial opinion; it is fully canvassed in the judgments of the justices of the High Court in Hackshaw v. Shaw (1984) 59 ALJR 156 and Papatonakis v. Australian Telecommunications Commission (1985) 59 ALJR 201. Brennan and Dawson JJ. said in Papatonakis at p 210:-

"An occupier of land is under a general duty of care to a person entering on the land, whether as invitee, licensee or trespasser, independent of any special duty, where there are circumstances giving rise to the general duty. That is now the settled law of this country: see Hackshaw v. Shaw (1984) 59 ALJR 156. It is also settled that any special duty owed by an occupier does not restrict the scope and burden of the general duty: see Public Transport Commission (N.S.W.) v. Perry

(1977) 137 CLR 107 per Gibbs J. at 131; Hackshaw v. Shaw, per Deane J. at 173. In Hackshaw v. Shaw, the majority of the court did not go so far as Deane J. who held (at 174) that - 'the so-called 'special duties' owed by an occupier to a person lawfully upon his land are instances of the duty of care arising under that general law in the circumstances of the relevant category of case'.

Nevertheless, it will usually be a barren exercise to consider whether the special and general duties are distinct but co-existing or whether the special duty is subsumed under the general duty ..."

The present case was argued before the Supreme Court and us as a case which falls to be determined by reference to the general duty of care arising under the general law in the circumstances of the case rather than as an instance of a special duty owed by The Commonwealth as occupier to a person entering on the premises in a special category. Accordingly, I propose to approach the case this way. I think this is the most appropriate approach to the facts of the case. It is not a case of liability of an occupier of premises for damage suffered by an invitee or licensee by reason of any unusual danger of the premises or any defect in them. Also, the general duty of care would in most cases, I should think, impose a higher standard of care than would be imposed by special duties owed by an occupier to persons in special categories. The Commonwealth conceded that it was the owner and occupier of the land on which the Alice Springs Courthouse stood at the relevant time, but it disputed that it owed any duty of care of the kind alleged by appellant in the circumstances of the case.
I cannot accept the proposition that a general duty of care arises from the Commonwealth's functions in relation to the administration of justice. It is too vague and general a concept. Also, responsibility for the administration of justice is a fundamental function of Government and it necessarily involves basic decisions of policy which lie at the heart of Government including the allocation of public funds and the interrelation of Goverment activities in various spheres.
Whether the general law imposes a duty upon the Commonwealth to care for the safety of persons in Courthouses under its control including persons who work there is not an easy question. In particular circumstances a duty of this nature could, I think, arise towards certain persons or classes of persons. But it is impossible to speak at large of a general duty of care of the Commonwealth to safeguard its Courthouses and people within them. The control of Courthouses is closely bound up with the Commonwealth as the body politic performing its functions in relation to the administration of justice, functions which rest essentially upon matters of high Government policy at all levels of Government - the Legislature, the Executive and the Judiciary. The notion of a general duty to care for the safety of persons within Courthouses does not lie easily with these basic considerations.
The independence of the Judiciary from the Executive and the Legislature is an essential part of our society. Judges and magistrates do not have under their control the police or other security forces; nor do they have at their command finance or other measures to ensure the security of Courts and those within them. The Judiciary generally relies on the other two arms of government for this purpose. But Judges, not the Executive or the Legislature, control activities within their Courts. They control the conduct of proceedings within them and the behaviour of those who are before them. For example, if a government official decided that uniformed policemen should be placed in a Judge's Court, the Judge may refuse to allow them to enter the Court. This is an apposite example here because this case concerns security and policemen. To say that the Judge controls his Court and its precincts (a concept well recognised in the law of contempt of Court) does not, of course, give a precise definition of the nature or extent of that control. Judges are lawyers, not experts in security. The provision of security measures must be the responsibility of the Commonwealth. The practical disposition of those measures is essentially also for the Commonwealth, but it must be done, as indeed it is, by arrangement with the Judges, especially the Chief Justices. The Commonwealth has responsibility for overall control and supervision of security of its Courthouses, but the Judges exercise control over their Courts for the purpose of performing their judicial functions. The line between the two is necessarily blurry, and it is sensible that this is so. These are delicate matters requiring care and respect on the part of all concerned. They demonstrate that the preservation of public safety within Courthouses is closely associated with matters of policy which involve the various arms of Government and which do not fit happily with the general law of negligence resting, as it does, upon the standards of the reasonable man.
The security of Courthouses and those within them is, of course, vital to a civilised society. Criminal trials and civil disputes are determined by Courts; feelings can and often do run high; the Courts have available and frequently exercise machinery to enforce their orders including imprisonment, fines and penalties. Some proceedings generate high feeling, others are drier. It is not only a question of securing Courthouses or those within them for the sake of the buildings themselves and the lives of their occupants; it is vital to a civilised society that the Judicial arm of Government operates and is seen to operate in an atmosphere of security and calm. There must be deterrents against people bent on terrorism or otherwise endangering public safety. It is to be hoped that our society never requires security measures so extreme that the Courts resemble fortresses; but security of some reasonable kind must exist in society's own interests. But these are matters for Government policy, not the civil law of negligence.
Circumstances could arise where the Commonwealth would be bound to take steps to secure the safety of persons within its Courhouses or to provide security measures otherwise than in association with particular buildings. Whether a duty of this kind arises must depend upon the circumstances of the case. Counsel for the appellant argued that the circumstances of this case gave rise to a duty of this kind. Counsel's starting point was the fact that the Commonwealth occupied and controlled the Courthouse at Alice Springs. He relied, however, upon other circumstances to support his submission that the Commonwealth owed a duty to the appellant to properly safeguard the Alice Springs Courthouse on 22 May 1975. The particular matters relied on were the letter from Prus to the Attorney-General of 18 January, 1975, the threat to Mr. Hall S.M. a few days before the shooting, the fact that the threat was made when Mr. Hall was sitting as a Stipendiary Magistrate in the Courtroom at Alice Springs and the events early in the morning of 22 May which culminated in the shooting of the appellant. Reliance was also placed upon a telex from the Commonwealth Police at Alice Springs to the Commonwealth Police at Canberra to which I will refer later.

I will take the letter to the Attorney-General first. The trial Judge considered this letter and its contents fully and concluded that it could not have been regarded as a threat to the appellant or persons in the Courtroom of the Alice Springs Courthouse in the course of performing their duties. His Honour said that he saw nothing in the letter to suggest that any particular person was in peril except Mr. Dean and Mr. Everingham and that the general threat was so vague that it gave no indication of what was intended or how to guard against it. In my opinion his Honour's analysis of this letter is correct. The letter does not assist the appellant as a circumstance leading to the imposition of a duty of care on the part of the Commonwealth at times relevant to this case.
As to the threat to Mr. Hall S.M., his Honour said that there was evidence to suggest that Prus was deeply distressed by the litigation and that he bore "great animosity" towards Mr. Dean and other legal practitioners in Alice Springs. However, Mr. Hall did not take the threat seriously and it essentially was a threat to his safety, not to that of anybody else.
The telex was from the Commonwealth Police at Alice Springs to the Commonwealth Police at Canberra and it said:

"REFERENCE TO Z. A. PRUS CSZYBOWSKI AUTHOR OF LETTER TO ATTORNEY-GENERAL THREATENING LIVES OF NORTHERN TERRITORY SOLICITORS EVRINGHAM AND DEAN. ADDDITIONAL INFORMATION FROM ALICE SPRINGS POLICE SUGGESTS THREATS SHOULD BE TAKEN SRIOUSLY AS CSZYBOWSKI IS CONSIDERED DANGEROUS AND HAS THREATENED TO KILL SERGEANT WOODCOCK OF N. T. POLICE. HE IS REGARDED AS A RADICAL AND HAS MADE NUMEROUS COMPLAINTS RE POLICE BEHAVIOUR. ALICE SPRINGS POLICE FEEL HIS MENTAL CONDITION IS DETERIORATING, AND A SITUATION AS OUTLINED IN HIS LETTER COULD EASILY LEAD HIM TO VIOLENCE.

Nader J. declined to admit the telex. The basis of its admissibility was argued by counsel for the appellant as being to prove the awareness of the Commonwealth of the risk of serious injury to persons whose business it was to be in the Alice Springs Courthouse. In his reasons for judgment the trial Judge was critical of the pleadings and said that they were "of little assistance in defining the issues". He said:

"The unsatisfactory state of the pleadings in this case led to difficulty in determining the admissibility of evidence from time to time. The problem was aggravated by the fact that the plaintiff did not respond to a request by the defendant for particulars until well into the trial. The response to that request when eventually given led to an amendment of the Defence."

These remarks must be kept in mind when considering the question of admissibility of the telex. In my opinion it has not been shown that his Honour erred in declining to admit the telex. Indeed, no foundation appears to have been laid for its reception into evidence. Even if it were admissible and had been admitted its probative value would, in my view, have been very limited.
Counsel for the appellant argued that his Honour erred, after rejecting the telex, in refusing the appellant an adjournment of the hearing to call evidence from the author of the telex and from its recipient. Counsel stated that the telex was not discovered to the appellant by the Commonwealth until very late in the appellant's presentation of his case at the trial, yet at all material times the awareness of the Commonwealth of the risk of harm to persons at the Alice Springs Courthouse was in issue in the proceeding. It is only in special circumstances that an appellate court will interfere with the exercise of the discretion of a trial Judge refusing an adjournment. No ground has been established in the present case for such intervention.
It remains to consider the events of the morning of 22 May before the shooting, events which directly concern the conduct of the police force at Alice Springs. The question arises at this stage whilst considering the scope of the Commonwealth's alleged duty of care. Those events raise the question of the Commonwealth's responsibility for the conduct of the Commonwealth Police. In 1975 the Northern Territory had not achieved its present form of self government and police officers performed their duties as officers of the Commonwealth Police.
Counsel for the Commonwealth submitted that the Commonwealth was under no duty to control Prus to prevent him harming others. Counsel relied upon what was said to be the general rule that one man is under no duty of controlling another to prevent him doing damage to a third person. We were referred to Smith v. Leurs (1945) 70 CLR 256 per Dixon J. at p 262; Home Office v. Dorset Yacht Co. Limited (1970) AC 1,004 and Council of the Shire of Sutherland v. Heyman, a judgment of the High Court, 4 July 1985, unreported, especially per Gibbs C.J. at p 19.
Counsel for the Commonwealth also submitted that the Commonwealth is not vicariously liable for the actions of the police in carrying out their functions of security and public safety, arrest and apprehension. He relied on Enever v. The King (1906) 3 CLR 969; Attorney-General for New South Wales v. Perpetual Trustee Co. (1955) AC 457; Chomentowski v. Red Garter Restaurant Pty. Limited (1970) 92 WN (NSW) 1070; Irvin v. Whitrod (No. 2) (1978) QdR 271 and Griffiths v. Haines an unreported judgment of Lee J. of the Supreme Court of New South Wales, 20 May 1982. The trial Judge accepted the correctness of this view and therefore did not find it necessary to deal with the question whether the police officers were in fact negligent on the morning of 22 May.
The Commonwealth is responsible in contract or in tort for the acts or defaults of its officers in the course of their services as in a case between subject and subject. This responsibility arises from ss. 56 and 64 of the Judiciary Act 1901.
The correctness of the proposition that a policeman, when acting as an officer of the peace (e.g., when exercising the power of arrest) acts in exercise of common law powers or of those powers as extended by statute and that, in general, the responsibility for acts of this kind does not extend to the body which appointed him to his office, is well established. But it would not necessarily apply if in the present case the Commonwealth owed a duty of care to safeguard the Alice Springs Courthouse in May 1975. Plainly the Commonwealth can perform its security functions only through the activities of persons including the police. There would be much to be said for the view, therefore, that, if there was a relevant duty of care on the part of the Commonwealth, this case would not be governed by the principles of Enever v. The King.
I cannot see any basis on the facts of this case for imposing vicarious liability upon the Commonwealth for any acts or defaults of the Commonwealth police including the Alice Springs police relating to the safeguarding of the Alice Spring Courthouse and persons within it and generally with respect to dangers to public safety arising from Prus in May 1975. It is therefore unnecessary to examine the question whether the police were in fact negligent. However, the matter was argued fully before us so I shall say something about it.
The relevant events occurred in 1975 before any real threat of violence to Courthouses and the administration of justice was known in this country. The Alice Springs Police Station was only a short distance from the Courthouse and the police could doubtless have been summoned at short notice if required. Indeed, they arrived soon after the shooting took place. It is true that no policeman was present at the Courthouse on the morning of the shooting when proceedings commenced, but prison officers, the Acting Sheriff and court orderlies were in attendance, although their functions do not appear to have been directly concerned with Court security.
It was most unlikely in 1975 that there would be an event of the king that occurred on 22 May of that year. Assaults on Court buildings and those within them were virtually unknown a decade ago in this country when Prus ran amock at Alice Springs. The evidence before the Supreme Court and his Honour's findings with respect to it do not give any comfort to the appellant's case. When considering the action of the police on leaving the police station at Alice Springs to intercept Prus on the road from his home to Alice Springs, the trial Judge said: "It is possible that they were tardy in leaving the Police Station." But his Honour made no finding that they were tardy.
His Honour also said:

"On the evidence, there must have been some five to ten minutes, or more, between Mrs. Lewis' (i.e. Prus' daughter) phone call to the Alice Springs Police Station and the shooting of the appellant. There is evidence that the distance from the police station to the courthouse was less than 100 metres."

That statement was made in the context of the trial Judge's finding that "the Courthouse was a place where there was a reasonable possibility of finding solicitors". I do not think that his Honour's statement can be called in aid by the appellant. They were not conclusive of any question and he expressly stated that he proposed to make no findings about the conduct of the police on the day in question.
I am not persuaded on the evidence before the Supreme Court that the Alice Springs police acted negligently on the morning of 22 May. Perhaps they could have responded more quickly to the telephone call from Prus' daughter; but that possibility, when assessed together with other evidence of the events of that morning, does not establish negligence on their part. Hence there could not have been any vicarious responsibility of the Commonwealth.
In my opinion the circumstances of this case are not sufficient to establish a duty of care on the Commonwealth to take steps to ensure the safety of persons within the Courthouse at Alice Springs or to provide security measures otherwise.
I would therefore dismiss the appeal with costs. I note that the Supreme Court did not make an order for the costs of the proceedings before it and reserved those costs. It is not necessary in the circumstances for this Court to make any order about those costs.

[1985] FCA 519

16 OCTOBER 1985