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Smith v State of Victoria

Smith v State of Victoria

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Case Copied 27 August 2018 78 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 3883

TARA SMITH & ORS	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2018
DATE OF JUDGMENT:	27 August 2018 (revised 29 August 2018)
CASE MAY BE CITED AS:	Smith v State of Victoria
MEDIUM NEUTRAL CITATION:	[2018] VSC 475

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NEGLIGENCE – Duty of care – Police – Family violence - Alleged duty of care to affected family members named in extant intervention orders prevent breach of intervention orders – Alleged duty of care to women and children to prevent family violence by repeat offenders – Alleged duty of care owed by identified senior officers at particular police stations to affected family members named in extant intervention orders, to ensure compliance by police within their line of command with Victorian family violence policies – Whether such duties have no real prospect of being successfully established - Family Violence Protection Act 2008 (Vic), preamble, s 1.

PRACTICE AND PROCEDURE – Summary judgment – Application for summary dismissal – Supreme Court (General Civil Procedure) Rules 2005(Vic), r 23.01 – Civil Procedure Act 2010(Vic), ss 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Rachel Doyle SC Ms Stella Gold	Flemington & Kensington Community Legal Centre
For the Defendant	Mr C M Caleo QC Mr Ronald I Gipp	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Relevant circumstances..................................................................................................................... 1

Summary dismissal and strike out................................................................................................ 11

The pleaded duty of care................................................................................................................ 12

The submissions............................................................................................................................... 16

Form of the pleading.................................................................................................................. 16
Substantive submissions............................................................................................................ 18
No common law duty to act............................................................................................. 19
No duty of care owed by police...................................................................................... 20

Salient features............................................................................................................................ 40
Conflicting duties........................................................................................................................ 45
Policy considerations................................................................................................................. 48

Conclusion......................................................................................................................................... 52

HIS HONOUR:

On 9 June 2015, the plaintiffs, a mother and her three children, commenced claims of negligence against the defendant, the State of Victoria.[1] Pseudonym orders protect their identities, and I will refer to them as Smith, Jasmine, Tegan and Imogen. The children are, and identify as, aboriginal. From the conduct of certain members of Victoria Police in relation to repeated instances of family violence, the plaintiffs allege three duties of care.[2] The perpetrator of the family violence was the biological father of the children, whom I will refer to as ‘the father’, with whom Smith had a relationship between 2003 and 2012.
[1]The claim was commenced in the County Court of Victoria on that date and on 21 September 2017 orders were made transferring the proceeding to the Supreme Court of Victoria pursuant to s 21(1) of the Courts (Case Transfer) Act 1991 (Vic).
[2]As ‘family violence’ is defined from time to time in the each of the by each of the Crimes (Family Violence) Act 1987 (Vic), the Magistrates Court Act 1989 (Vic) (as amended by the Magistrates’ Court (Family Violence) Act 2004 (Vic)) and the Family Violence Protection Act 2008 (Vic).

The claims alleged are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 475
Decision Date: 27 August 2018 (revised 29 August 2018)

CaseChat Overview and Summary

In the case of Smith v State of Victoria, the plaintiffs sought to hold the State of Victoria and its police force liable for negligence in their failure to prevent family violence. The plaintiffs, who were victims of family violence, argued that the police had a duty of care to prevent violence against them and other named individuals in intervention orders. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the police owed a duty of care to the plaintiffs, who were victims of family violence, to prevent harm from repeat offenders, particularly in light of existing intervention orders. The plaintiffs also claimed that senior officers at specific police stations had a duty to ensure compliance with family violence policies among the police under their command. The court had to determine if these duties of care could realistically be established under the law.

The court found that the plaintiffs' claims had no real prospect of success. It held that the police did not owe a duty of care to the plaintiffs in the circumstances presented. The court reasoned that imposing such a duty would extend beyond the scope of existing legal principles and precedents, making it unlikely that the plaintiffs could successfully establish their claims. Consequently, the court granted the defendants' application for summary judgment, dismissing the plaintiffs' case.

As a result of the court's decision, the plaintiffs' claims were dismissed, and the defendants were not required to face a full trial. The court found that the plaintiffs' allegations of negligence did not have a realistic prospect of success, and therefore, the case was terminated at an early stage.

Orders