State of New South Wales v DC & Anor

[2017] HCATrans 100

[2017] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 2017

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

DC

First Respondent

TB

Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 2017, AT 10.17 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the court, I appear with MR I.L. HARVEY and MS L.A. COLEMAN for the appellant.  (instructed by Crown Solicitor (NSW))

MR A.S. MORRISON, SC:   May it please the Court, I appear my learned friends, MR J.R.K. PRYDE and MR N.F. MORRISSEY, for the respondents.  (instructed by Graham Jones Lawyers)

KIEFEL CJ:   Yes, Mr Williams.

MR WILLIAMS:   Your Honours, we start in paragraph 3 of our outline of oral argument.  Put shortly, the first question before the Court concerns the translation of the public law “may” into the common law “ought”.  We refer in that respect to the judgment of Justice Gummow in Pyrenees Shire Council v Day (1998) 192 CLR 330 and in particular to his Honour’s reasons at paragraph 122, where the proposition about translation of the public law “may” into the common law “ought” is referred to, but then to paragraph 126 on page 377, in which, having referred to some control devices on the scope of liability, his Honour observes that:

Some of these distinctions and doctrines are entrenched in the common law of Australia, others are not.  All of them, as the present appeals will demonstrate, tend to distract attention from the primary requirement of analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial.

To begin then with the relevant legislation, it is found attached to our written submissions in the Child Welfare Act 1939. The relevant sections are a few pages from the back and they begin - using the print number - at page 133 from the reprint, with section 148B of the Act. This is an Act that, as Justice Basten observed in paragraph 52, found - for the reference, at page 570 – had:

to be administered in accordance with the principle that . . . the safety, welfare and well‑being –

of young persons was the paramount consideration.  In section 148B, powers and, to some degree, duties are referred to.  Prescribed persons are defined as medical practitioners and then classes of persons who may be prescribed.  In subsection (2), there is a general authority on:

Any person who forms the belief upon reasonable grounds –

about a child, that the person may, purely discretionary in form - that is at the top of 134 – “notify the Director of his belief” or “cause the Director to be so notified”.  In respect of professionals, prescribed persons, professionals other than lawyers, subsection (3) imposes a duty that is seen in the last word of the chapeau of the section that where a person:

has reasonable grounds to suspect that a child has been assaulted, ill‑treated or exposed shall –

(a)notify the Director . . . or

(b)cause the Director to be so notified –

and shall do so, as we see below paragraph (b):

promptly after those grounds arise.

So a time for exercise or performance of that duty is specified.  Subsection (4), failure to comply is an offence for a prescribed person.  Then the critical subsection is subsection (5), but I will pass over that for the moment and return to it immediately.  Subsections (6) and (7) confer a protection for notifiers and there are some qualifications to that.  Notifications are immune from compulsory production or disclosure under (6)(d) and (e), except in some circumstances, and there are protections against defamation and the like.

So, in short, what those subsections provide by way of context - that protection for notifiers shows this to be overall a provision by which the legislature seeks to encourage and require notifications and then divest in the Director discretionary powers to decide what to do about them.  Turning then to subsection (5):

Where the Director has been notified under subsection (2) or (3), he shall‑

So paragraph (a) is mandatory:

promptly cause an investigation to be made -

and (b):

if he is satisfied –

So, at the outset, it is a satisfaction provision.  It commits the threshold question to the judgment of the Director.  We also say in respect of satisfaction that it emphasises the importance of identifying a person and that person’s state of mind.  That is critical to this and that is of course relevant to our second point, the vicarious liability point.  So if the Director is satisfied that the child may have been:

assaulted, ill‑treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police.

So, first, we say the discretion is conferred in the widest possible terms.  It is plainly a matter for the judgment of the Director.  Secondly, the reporting is at a low level; it is not an obligation to give a notification to the Commissioner with some kind of commensurate obligations on the Commissioner to undertake an investigation where notified.  It is simply a discretionary power to report matters to a constable, if the Director believes that action appropriate.

So, with those statutory considerations in mind, we observe in paragraph 4 that that power did not endow the appellant through its officers with any practical or legal measure of control over the relevant risk of harm.  If the matter were reported to police, the Director, the departmental officers had no control over what course might follow from there.  Police are notoriously prone to make up their own minds about how to deal with serious offending that is reported to them and sometimes to do that with regard to considerations of law enforcement other than the preferences or best interests of particular witnesses who might be called.

KIEFEL CJ:   Mr Williams, was the question whether section 148B was engaged in the sense of there being a notification as required by that section from a prescribed person, was that only first adverted to in the judgment of Justice Basten?

MR WILLIAMS:   Yes.

KIEFEL CJ:   It was not pleaded.  It was not raised before this?

MR WILLIAMS:   No.

KIEFEL CJ:   It is, however, a precondition to any liability.

MR WILLIAMS:   Yes, the case was run at ‑ ‑ ‑

KIEFEL CJ:   I should say a precondition to the exercise of any power.

MR WILLIAMS:   Yes, the case was run below on the – run at first instance and in the Court of Appeal upon the assumption that the section was relevantly engaged by a notification.  Self‑notification was treated as sufficient.

GORDON J:   Is it the position that ‑ ‑ ‑

MR WILLIAMS:   I am sorry, your Honour - from the grandmother’s house.  That is where the notification occurred.

GORDON J:   Just so I understand that contention is that based upon paragraphs 19 and 21 of the judgment at first instance where the facts are set out in relation to the two sisters’ complaints?  Is that the entirety of it?  Page 455 of the appeal book; so 19 deals with one of the sisters and 21 deals with the second sister.  Is that the extent of the notification, facts and matters?

MR WILLIAMS:   That is so, your Honour.

GAGELER J:   “Director” is to be read consistently with the Carltona doctrine, is it?

MR WILLIAMS:   Yes, although no attention has been given to that below.  The Director, of course, was not joined and, moreover, no case was pleaded against the Director.  The Directors are a repository of the statutory power but it was not pleaded against the repository of the statutory power.  It was pleaded against, first, the State of New South Wales and secondly, Ms Quinn.

GAGELER J:   But Ms Quinn was someone who could exercise the statutory power under subsection (5), was she?

MR WILLIAMS:   She was a person who within departmental – so far as the evidence showed departmental practice.  She was not a person who had the authority to make a decision to report a matter to the police.  That authority resided with one or other or both of her superiors – Mr Frost or above him Mr Maguire or in the absence of each of them a person who was performing that function in the absence of both of them. 

GAGELER J:   Did they have formal delegations?

MR WILLIAMS:   There is no evidence about that.  Ms Quinn refers to a delegation perhaps in answer to a leading question but she ‑ ‑ ‑

GORDON J: Because there is a power under section 10A of the Child Welfare Act under subsection (2) for the Director to delegate referable powers and functions – powers, authorities, duties or functions.  Is that the subject of evidence in relation to the officer involved here?

MR WILLIAMS:   I believe not.  There was no evidence of delegation.

GAGELER J:   It was accepted that the Director had been notified for the purpose of the section.

MR WILLIAMS:   It was accepted that the power had been triggered and implicitly with the statutory overlay and the absence of any question of this kind being agitated, as your Honour the Chief Justice alluded to by your Honour’s question, that that brought it within the section.  So, in the opening sentence of 4 of our outline, we refer to the lack of any practical or legal measure of control - the importance of “practical legal measure of control” over the matter if it were to be reported to the police.

The importance of control is paramount in a range of the cases in the Court starting with Crimmins v Stevedoring Industry Finance Committee 200 CLR 1. Page 25 of the report in paragraph 45 in the judgment of Justice Gaudron, in the second half of the paragraph having referred earlier to the fact that the authority ought to have known of the exposure to asbestos, in the last sentence of 45 her Honour refers to the point that:

if employers were not taking adequate measures, the Authority was in a position to take various steps, short of making orders having the force of law, to control or minimise those risks.

Given the vulnerability of the late Mr Crimmins, the knowledge the Authority had or should have had, and its position to control or minimise the risks associated with the handling of asbestos, there was, in my view, a relationship –

At paragraph 107, Justice McHugh deals with the question of control:

What is required to discharge a duty arising from a direction or the control of a person’s freedom of action will depend on the circumstances . . . it may be very little.  But usually the very fact of the direction or control will itself be sufficient to found a duty.

Then, in paragraph 166, Justice Gummow refers to cases in which:

the powers vested by statute in a public authority may give to it such a significant and special measure of control over the safety of the person or property of the plaintiff as to oblige it to exercise its powers to avert danger or to bring the danger to the knowledge of the plaintiff -

His Honour treats that – his Honour explains the decision in Pyrenees by reference to that.  Then, in paragraph 168, in the second half of paragraph 168 is the point of his Honour’s dissent.  Justice Gummow, of course, was dissenting, as was Justice Hayne:

However, the existence of those powers did not place the Authority in control of the working situation of stevedores.  The Authority occupied a position lacking the practical and legal measure of control enjoyed by the local government authority in Pyrenees –

That factual point is the point of the dissent.  Paragraph 276 in the judgment of Justice Hayne:

The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm’s way and to do so in circumstances over which that employer can exercise control.  The duty is, of course, not absolute; it is the duty “of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury”.

Both the power to direct and the power to control are important.

Then still in the judgment of Justice Hayne, at paragraph 304:

The absence of control is very significant in deciding whether to hold that the Authority owed a duty of care to warn, encourage or to supply equipment.  No doubt the absence of control would also be important in deciding whether any breach of the asserted duty was a cause of the injury . . . But its significance is not limited to questions of causal link between breach and damage, it is more radical . . .

Then in 305 is the point of his Honour’s dissent:

An employer owes an employee the duty of care it does because the employer not only puts the employee in harm’s way but also controls, and is responsible for, the place and system of work . . . It is that control . . . that leads to the conclusion . . . It is the absence of that control which distinguishes the position of the Authority from that of an employer.

Then at paragraph 357, in the judgment of Justice Callinan:

The right to control and actual control are important matters in determining whether a duty of care is owed.

His Honour refers to authority in that respect.  In Graham Barclay Oysters 211 CLR 540, starting at paragraph 146 on page 596 in the joint judgment of Justices Gummow and Hayne:

The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime.  The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

Paragraph 150:

The factor of control is of fundamental important in discerning a common law duty of care on the part of a public authority.  It assumes particular significance in this appeal.  This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde is remote, in a legal and practical sense, does not suffice to found a duty of care.

Then, 154:

In broad terms: the Council’s statutory powers enabled it to monitor and, where necessary, to intervene in order to protect, the physical environment of areas under its administration.  However, the conferral on a local authority of statutory powers in respect of activities occurring within its boundaries does not itself establish in that authority control over all risks of harm which may eventuate from the conduct therein . . . It did not control the process by which commercial oyster growers cultivated, harvested . . . The Council has not been given, by virtue of its statutory powers, such a significant and special measure of control over the risk of danger that ultimately injured the oyster consumers so as to impose upon it a duty of care the breach of which may sound in damages –

Then, going to paragraph 319, in the judgment of Justice Callinan:

the authorities to which I have referred do not stand for one clear test which is applicable to this case.  Even though the Council here did have some measure of control of the land . . . it was not in the same position as a highway authority.  The reasoning of the three Justices responsible for the joint judgment in Brodie depends in part at least upon the fact that highway authorities stand in a different position from other authorities in that they have actual physical control and occupation of the dedicated road area -

Then, paragraph 323 on page 665, the closing sentence:

The State, furthermore, was not in the position of a highway authority having actual physical control of the land from which the effluent was released.

It is not necessary to go to the other judgments, but the judgment of Chief Justice Gleeson in paragraphs 9, 20 and 32 and the judgment of Justice McHugh, 78 to 84, and 91 are consistent with that approach.  Finally, in dealing with authority, Stuart v Kirkland‑Veenstra 237 CLR 215, starting at paragraph 82 on page 247:

For present purposes, however, the critical observation that must be made about s 10(1) is that it gives power to police officers:  “[a] member of the police force may apprehend . . . The sub‑section does not in terms impose on police officers an obligation to exercise that power of apprehension if a person appears mentally ill and there are reasonable grounds for the officer to believe that the person has recently attempted or is likely to attempt suicide or to cause serious bodily harm to that person or to some other person.  And there may very well be circumstances in which a police officer acting reasonably would not exercise the power even if the conditions for its exercise were met.

So the power in question there is very close to the present power.  The power can be seen on the facing page in paragraph 80.  It is in section 10(1) of the Mental Health Act:

A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that –

So, quite similar.  The observation in the closing sentence of 82 that:

there may very well be circumstances in which a police officer acting reasonably would not exercise the power even if the conditions for its exercise were met -

was expressly agreed in by Justice Crennan and your Honour the Chief Justice at paragraph 144.  But if I can go first to paragraph 108 in the plurality, the closing sentence of paragraph 108:

That is, the statutory power is said to be coupled with a common law duty of care that would require not only consideration of the exercise of the power but also its exercise whenever reasonable to do so.

The immediate answer to this proposition may be thought to be that this is not what s 10 of the Mental Health Act provides, and no other statutory source of such obligations was identified.

Then paragraphs 112 through to 114 involve a re‑emphasis of the primacy of control.  There was a reference to passages – in 112 passages in Graham Barclay Oysters, to which I have taken the Court.  Paragraph 113:

Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.

In one sense in that paragraph the tensions in the present case are all reflected.  Paragraph 114:

In the present matter, as in a number of cases about the exercise of statutory power, it is the factor of control that is of critical significance.  It was not the officers who controlled the source of the risk of harm . . . it was Mr Veenstra alone -

Then paragraph 144, the joint judgment of Justice Crennan and your Honour the Chief Justice:

The existence of a power coupled with a discretion may not suffice for an action for breach of statutory duty.  The statute must oblige the exercise of those powers in the circumstances which prevail. 

Then at the end of the paragraph, five lines up:

There may be circumstances where those indicia are present but an officer is nevertheless justified in not apprehending a person.

Then a reference to the judgment of the plurality:

This may account for the choice implied by the word “may” in the sub‑section.  The common law may not interfere with the exercise of a discretion.

Finally, in paragraph 149:

The question of whether there was a duty at common law in this case requires, as a minimum, a power given by the statute . . . It is the availability of such a power which may inform considerations as to the existence of a relationship and the ability to control the risk of harm which may be relevant to the existence of a duty.  However, it is not the common law which determines whether the power is enlivened.  It is the Mental Health Act which is the sole source of the power.  That Act, by s 10, requires that a police officer hold an opinion that a person is mentally ill before the power of apprehension is available to the officer.  In the present case neither officer held such an opinion.  There was no issue raised as to the fact that such opinions were held.

So, we make the point about the degree of control that was available to the Director in respect of the particular source of harm here and in particular the degree of control that was at the level of the statute, using foresight, not looking back retrospectively as one does what the question of causation - at the level of the statute, using foresight, what control was available to the Director or to officers if they were to do as the plaintiffs below contended they should have done and notify the police.

The second of the points we develop in this respect, runs from paragraph 6 of our outline and it is really about the issue of coherence.  The scope of the common law duty owed by public bodies invested with statutory powers has to be determined prospectively.  We refer in that respect to Justice Basten in volume 2 of the appeal book, page 573, beginning perhaps ‑ taking the paragraphs out of order ‑ at the foot of the page in paragraph 62 at about line 58:

Secondly, the common law will not impose a duty which is “inconsistent with, or have a tendency to discourage, the due performance by the [relevant authority] of its statutory duties”.  Nor will it require that a discretionary power conferred by statute be exercised in a particular way.  In the case of a statutory power the duty will usually be to consider its exercise, if the preconditions are satisfied.

But going back then to paragraph 61, where his Honour identifies the particular issues here - his Honour having previously referred to the guidelines that were available at the time within the Department:

This last paragraph patently recognised that there may be conflicting views as to the appropriateness of court action, involving criminal proceedings against the perpetrator of abuse.  The potential for conflict in such cases was inconsistent with the proposition that a child welfare authority should be placed under a common law duty which included reporting cases to the police for the purpose of prosecution.  This was not an abstract issue:  there was unequivocal evidence that this problem affected the thinking of Ms Quinn, considered below.

Of course, the Department had no control once the matter was notified to the police.  There were administrative arrangements for consultation but they did not determine in any sense what would happen and I will take your Honours in due course to some of the evidence about the fragile state of one of the respondents at the relevant time that is eloquent of the risks inherent in the notion that she should be put in the witness box in court to give evidence against a violent and abusive stepfather.

The formulation of the relevant duty as one to take all reasonable steps, that is how it was pleaded and that is what Justice Ward found at paragraph 276, is inconsistent, in our submission, with the notion of a discretion plainly conferred in wide terms by the legislation upon the Director to take such steps as he believes appropriate. 

We submit that there is no warrant in the text of the section, subsection (5), in particular, positively requiring that step.  In paragraph 8b) of our outline we observe that the conferral of the broad discretion recognises the breadth and delicacy of the issues involved in cases such as this and indicates a legislative intention for the repository of the power to determine for itself whether and how the purpose should be exercised.

The purpose, as we put in paragraph 9b) or the primary purpose of section 148B is to protect victims of child abuse from the risk of further harm and that purpose would, in many cases, be subverted rather than advanced by the imposition of a positive common law duty to report.  We refer, in that respect, to Justice Basten, page 585 of volume 2, paragraph 90.  His Honour refers to Sullivan v Moody which I will go back to in a moment:

The need for coherence was properly identified . . . However, the principle was applied at too high a level of generality.  As was sought to be explained above, in a particular case the public interest in protecting a victim of child abuse from further harm and the public interest in prosecuting her abuser may indeed conflict.  The potential conflict would arise starkly in a case where it was believed that the child’s mental health would be at risk if she were required to be a witness against her abuser (especially if another family member) in criminal proceedings.  In that case the imposition of a common law duty to report the investigation to the police for the purpose of protecting the victim, would lead to actual conflict and thus incoherence.  That is a powerful (if not conclusive) reason why the duty should not extend so far.

His Honour had developed on the preceding page 583 from about line 40 – just above line 40 of the page, the difficulties with which the proposition that there should immediately have been a report with the engagement of the processes of the criminal law – the difficulties with which that proposition was fraught. 

GORDON J:   These are the factual difficulties, you mean, in this case?

MR WILLIAMS:   Yes.

GAGELER J:   Mr Williams, you do accept a duty of care?

MR WILLIAMS:   A duty to exercise reasonable care in the exercise of the power – yes, in considering the exercise of the power.

GAGELER J:   Right, so if we relate that to section148B(5) and we accept that the Director has been notified so that the power is triggered, where does reasonable care come into it?

MR WILLIAMS:   Reasonable care in the exercise of the power and the question is the scope of the duty.

GAGELER J:   Yes, so you accept that there is a duty – the common law duty required the Director, whoever that might mean, to consider the exercise of the power.  Is that right?

MR WILLIAMS:   Yes, and to exercise reasonable care in doing so.

GAGELER J:   In considering?

MR WILLIAMS:   Yes.

GAGELER J:   But you draw the line at the outcome, do you?

MR WILLIAMS:   We draw the line at the particular outcome.  We say that there was a duty to exercise reasonable care in considering the exercise of the power.  That was manifestly done, in our submission, and our chronology of the steps that were taken very promptly, the same day on the better view of the evidence, for the protection of the children is eloquent of the degree of care and careful consideration that was given to the exercise of the power here.  Where we draw the line is that we do not accept that the reasonable exercise of the power necessarily extended to notifying the police.

GAGELER J:   There is a finding in Wednesbury unreasonableness, I think.  Do you dispute that finding?

MR WILLIAMS:   We do in this sense.  The finding is not so much of Wednesbury unreasonableness, although it uses the language of Wednesbury unreasonableness, but that is a finding in respect of 43A of the Civil Liability Act.  It is a finding in respect of the standard of care to be applied, and that is a question that only arises once the duty has been accepted.  Our attack below and here is upon the scope of the duty.  If it were relevant for us to engage with that finding, we certainly would dispute that finding, but it is not on the notice of appeal before the Court.  We certainly do not accept that there was only one outcome that was reasonably available here.

GAGELER J:   Just hypothetically, if there had only been one outcome reasonably available here, what would your position be?

MR WILLIAMS:   In a sense your Honour is asking the question that Chief Justice Brennan posed in Pyrenees ‑ ‑ ‑

GAGELER J:   Yes.

MR WILLIAMS:   ‑ ‑ ‑where the duty would be compellable by mandamus, speaking theoretically, because plainly they were not going to be mandamus proceedings.

GAGELER J:   Yes.

MR WILLIAMS:   If on the facts there were only one available course then we would be in some difficulty, but the question is actually asked at the earlier level, the question of control.  There is a threshold.  In a sense there are two issues involved in our first point.  The first is the level of control.  That is considered prospectively by reference to the powers and the position of the parties.  We say that that filter here is such that there could be no duty of care. 

Secondly, we say that in respect of the power here, which is conferred in the widest discretionary terms, there is an additional problem, a problem of coherence.  If your Honour’s question really goes to the second of our arguments, and it would be a more difficult argument to mount if the facts showed that there was indeed only one course available ‑ ‑ ‑

GAGELER J:   I think the difficulty is that you do accept that the common law intrudes a little bit into the exercise of this statutory power.  It is just that your drawing of the line is somewhat difficult from my perspective.

MR WILLIAMS:   It is a difficult line to draw and the authorities are clear, in a sense, that there is no bright line.  There are indicia – control, relationship - I have taken your Honours to the authorities to show what the indicia are to be considered but control is the first and perhaps the most important and control here was absolutely lacking if the matter were to be reported to the police, the departmental ‑ ‑ ‑

GORDON J:   Is that any more – so, Justice Ward described the content of the duty that she determined to be one – “a duty in the exercise of the statutory powers . . . as to take all reasonable steps”, which you challenge on the basis that it is too broad and not consistent with the statutory language.  So, when you are drawing the line and she goes on to say “all reasonable steps in the circumstances”, is your formulation of your content one which is duty in the exercise of the statutory powers under the Act so as to take steps that were reasonable in the circumstances.  Is that the way you put it?

MR WILLIAMS:   The duty we have conceded - there may not be a difference with what your Honour Justice Gordon has put to me but the duty we have conceded is a duty to exercise reasonable care in the ‑ ‑ ‑

GORDON J:   I think the imposition of the “reasonable care” language is a bit odd in my – I am having difficulty to understand it and that is why, picking up the question from Justice Gageler, there may only be one step that is available and that is why the language is – it is not “all reasonable steps” as I understand it because you challenged Justice Ward but it may be “to take steps that are reasonable in the circumstances”. 

MR WILLIAMS:   Yes.

GORDON J:   So, that reporting to the police may not be reasonable, for example, on your formulation because of the dire consequences that might follow from it.

MR WILLIAMS:   It may not fall within your Honour’s formulation of reasonable steps.  It may fall outside that, because of the dire consequences that may flow from it. 

GORDON J:   That is my point.

MR WILLIAMS:   My semantic quibbles with your Honours about the formulation of reasonable care come from – the formulation we have accepted is one that comes from Heyman’s Case and has been referred to in a number of cases since then.  But, in the context here I do not submit that it would be any different from the duty that your Honour Justice Gordon has put to me.

KEANE J:   The difficulty with saying that the duty is to take all reasonable steps is that the universe of possibly reasonable steps may involve steps that are actually contradictory to each other.

MR WILLIAMS:   That is so.

KEANE J:   So, in terms of coherence, if you like, or just making sense, the duty cannot be to take all reasonable steps, it must be to exercise a degree of care that reflects a balance.

MR WILLIAMS:   Especially is that so where the power in question is formulated in terms of such steps as he believes appropriate.

KIEFEL CJ:   The key word being “appropriate”, that is the balancing exercise.

MR WILLIAMS:   Yes and, in a sense, “believes” because “believes” is an indication of a legislative intention – another indication of a legislation intention to vest a wide discretionary judgment in the Director.

GAGELER J:   So, you are really saying that the statutory belief is one that is to be formed without the intrusion of concerns about common law duty ‑ ‑ ‑

MR WILLIAMS:   Yes.

GAGELER J:   ‑ ‑ ‑ which is really just Sullivan v Moody, I think.

MR WILLIAMS:   In a sense.  I can take your Honours to the passage in Sullivan v Moody directly, if that assists and I should have done this at an early stage.  Sullivan v Moody 207 CLR 562 - the key passages perhaps start from paragraph 50 in the plurality:

Different classes of case give rise to different problems in determining the existence and the nature or scope, of a duty of care.  Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party.  Sometimes they may arise because the defendant is the repository of a statutory power or discretion.  Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits.  Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships.  The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.

Then at paragraph 55 on the following page:

More fundamentally, however, these cases present a question about coherence of the law.  Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities.

Your Honour Justice Keane’s point about conflict perhaps:

A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

Then at paragraph 60:

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff.  People may be subject to a number of duties, at least provided they are not irreconcilable.  A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person.  But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.  Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

So, we accept that is squarely the line of territory with which we are concerned.

GAGELER J:   Well, even more so I think, the reference at the bottom of page 581 to the reasoning of Lord Browne‑Wilkinson, the gist of which I think appears at page 574, paragraph 30, the reference being, as his Lordship said:

a “common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with –

these are the words –

or have a tendency to discourage, the due performance of the local authority of its statutory duties”.

MR WILLIAMS:   Indeed.  That is precisely the line of territory that we invoke. 

KIEFEL CJ:   So when you are talking about reasonable care in the considerations to be undertaken by the Director, or someone for the Director, it is what reasonable care - the content of this notion is a combination of general public law senses such as not acting capriciously, arbitrarily, et cetera, together with what is gleaned from the Act, is it not, which is to have in mind the purposes for which the power is given, namely the protection of persons?  So there is not really much that the common law actually provides apart from language.  Most of what is involved in the proper exercise of the power when you say “with reasonable care” is derived from those kinds of notions, is it not?

MR WILLIAMS:   Indeed.  It may not be that far, having regard to Justice Brennan in Kruger v Commonwealth.  It may not be that far from the public law position.

KIEFEL CJ:   At least where you have such an obvious aim or reason for the power – for the existence of the power and its exercise. 

MR WILLIAMS:   Yes.  In that respect, we make the point in paragraph 9b) of our outline that by reference to Justice Basten in page 585 – I am sorry I have already gone there – of the book and paragraph 85 on page 583 about the difficulties that were inherent in this case - from about line 41:

There was no finding that, if charged, [the perpetrator] would have pleaded guilty, nor could there be such a finding on the evidence.  It was not, however, an hypothetical consideration for a welfare officer.  If [he] was arrested and charged and did not plead, the complainants would be required to give evidence.  What would have been the consequences of that course for them?  There is no clear answer in the evidence, except that [some years later] when they were called upon to give evidence –

it had serious consequences for them:

It must be accepted that the senior officer . . . on whom the hypothesised duty lay to report to police (or at least to consider reporting the matter to police) would have had to consider such matters . . . the officer would have had to consider whether [the perpetrator] would be granted bail, would have had to make assumptions about the effectiveness of any conditions –

remembering, of course, that this perpetrator was on bail at this very time for another serious sexual offence, the rape of his son’s girlfriend, and those conditions had not been effective:

and would then have had to consider whether those conditions would be more effective than orders made by the Children’s Court.

As his Honour observes:

These are not factual questions for this Court . . . to answer; they are raised as potential, but legitimate, considerations which demonstrate the inappropriateness of imposing on the State . . . a duty to report the criminality –

Given the passage of time and the loss of records, there is no evidence and no finding about why this matter was not reported to the police, assuming that it was not, bearing in mind of course as best they could do 30 years later, the relevant officers thought it had been in accordance with their recollections or in accordance with their recollection of practice.

It cannot be inferred it was just inadvertence or an oversight and that is because the fragility of the respondents and the complexity of the family circumstances provided a strong basis on which a decision might have been made, perhaps might inevitably have been made not to refer the matter.

If your Honours go to volume 1 of the appeal book, page 315, this is in the June report of Ms Quinn – I think the first report of 20 June – about line 40 there is a recounting of some factual circumstances about the perpetrator leaving the home, staying in a flat. 

(He has since returned home.)  At this time –

and plainly enough, from the context of the paragraph, this is a reference to the time when he had left the home:

[TB] became increasingly distressed.  She felt her mother, brother and other extended family members blamed her for “breaking up the family”.  She felt ambivalent towards her mother, saying she loved her but resented her for loving her father and wanting to maintain a relationship with him.  She felt her mother was siding with her father and that they were acting as if nothing had happened.  During this time –

there were suicidal ideations.  The involvement of a house service, the Montrose After House Service and:

[TB] falling into the “victim role” feeling responsible –

and then at about line 53:

As time went on it became clear that this is an extremely complex family with long standing problems, secrets between members, disturbed histories and several past traumas.

Going over the page, at about line 28, is a setting out of the mother’s history and some further reasons why a criminal charge would create problems.  Then, in the next paragraph, disturbing factors in the past arising from a trauma.  Then about line 38:

particular and immediate concern for [TB’s] emotional well‑being.  She will need a great deal of support in order to work through and resolve the problems facing her.

So, in short, TB, who was, in a sense, the primary reporter, was not a strong candidate for the role of principal prosecution witness against a violent and abusive stepfather.  It was well open to YACS officers to take the view that she should not be exposed to the risk that the police would take the rigorous approach the trial judge thought should have been taken and initiate a prosecution and put her in the witness box.

BELL J:   In the way the matter was conducted, Ms Quinn, who was the second defendant, gave evidence and effectively had very little recall of the steps and her own deliberative processes.  Is that right?

MR WILLIAMS:   Broadly, yes.

BELL J:   Is it accepted by the appellant that Mr Frost was a person who could exercise the power under 148B(5) where that power was engaged?

MR WILLIAMS:   Yes, although there was ambiguity as to whether he needed to do so after consultation with Mr Maguire.  There was some evidence to suggest Mr Maguire was the person with the authority when he was around.

BELL J:   Is it the case that Mr Frost was no longer able to recall his deliberative processes?

MR WILLIAMS:   That is so, almost no recall of the case at all.  Mr Maguire had none, even prompted.

BELL J:   Thank you.

MR WILLIAMS:   These passages are consistent with the conclusion that Justice Basten reached at page 583, that I have gone to.  At the top of page 583: 

[TB] is not mentally capable of coping with the stress of –

a criminal charge.  Finally, perhaps, in that report, the conclusion at 318, at about line 35:

As this is an extremely complicated family it is felt there is a need for a period of thorough assessment . . . To ensure the safety and emotional well‑being of –

the respondents –

during this period, it is considered necessary that –

the perpetrator –

reside away from the home.

The report, as indeed with all of these reports, is redolent of the deep concern to ensure the wellbeing and eloquent of the difficult judgments that were facing the officers as to what was the best course for achieving that result.

BELL J:   In terms of the primary judge’s finding, it was that the duty required reporting to the police certainly before September 1983 ‑ ‑ ‑

MR WILLIAMS:   On 28 April, his Honour found. 

BELL J:   Yes.

MR WILLIAMS:   From 28 April.

KEANE J:   While the matter was pending in the Children’s Court.

MR WILLIAMS:   And while the children were out of the home and away from the perpetrator.

BELL J:   And while it was the opinion of the district officer having charge of the matter that a number of months were required in order to make an assessment of the best interests of the child.

MR WILLIAMS:   Yes.

GORDON J:   Ms Quinn rejected, did she not, in cross‑examination – is my recollection right - that she could not recollect raising reporting to police with Frost and Maguire but it would have been her usual practice.  Is that right?

MR WILLIAMS:   That was her usual practice, yes, and she gave evidence which was allowed that she believed that she had done that or would have done that. 

BELL J:   There was some evidence, was there not, that Ms Quinn had, at the time, conveyed a concern about TB’s fragility in terms of giving evidence.  Was that from the mother?

MR WILLIAMS:   There is the direct evidence that I have just referred to at the top of page 583 which is not from Ms Quinn but from DC.  Part of the surrounding evidence for this was not accepted by the primary judge, taking her around and taking her to the police station.  It is not clear whether this passage was rejected but, in any event, there is that.

BELL J:   I see, yes.

MR WILLIAMS:   I referred, I think, in answer to your Honour Justice Keane, to the finding about the report - the primary judge’s finding as to when the report should have been made.  That is page 488 of volume 2 in paragraph 108:

I am of the view that the report to CMU -

that was her role in the police unit:

should have been made no later than 28th April 1983.

That is eight days after the Department first learned of it:

I think it unnecessary to consider whether a further report should have been made in September 1983.

So, having regard to the intensity of the resources that were applied to this by the Department, including several visits to the Children’s Court, careful detailed reports submitted, consideration by a case conference of specialists, involvement of the departmental psychologist, Mr Skead, the more natural inference, if it is accepted that there was no report, is that a decision not to report reflected an assessment of the complex discretionary factors rather than, as the respondents would have it, mere inadvertence or oversight. 

The idea that in something going on for so long, going back before the Children’s Court for so long should have been the subject of a police report but inadvertently was not is inherently much less likely than that of a conscious decision having regard to the kinds of factors that Ms Quinn was alive to from the outset.  But there is no finding as to what the reasons were for non‑reporting.

GORDON J:   While I was asking you that question I thought, is inadvertence open, given Ms Quinn’s evidence?

MR WILLIAMS:   Well, we would say, no, your Honour.  The submission is put here against us but we would say, first, there is no finding to that effect and, secondly, her evidence and Fox v Percy, the logic of the contemporaneous documents we would say would make such a finding perverse.

GORDON J:   Was the inadvertence argument put below?

MR WILLIAMS:   Not to either of the officers.

GORDON J:   No, I meant in the way the trial was conducted?

MR WILLIAMS:   No, I hear is the answer from someone who was there.  Mr Frost – neither Mr Frost nor Mr Maguire were taxed with the proposition that they had failed to follow their usual practice, although Ms Quinn was.  Plainly enough, they could have been asked such a question even in circumstances where they did not have a recall or giving evidence from ‑ ‑ ‑

GORDON J:   The passage of Ms Quinn’s evidence, where it is put to her is she rejects the proposition that she never raised it with Maguire or Frost and then says:

I don’t have enough recollection of the time but –

it was the usual practice to have that kind of discussion in an event such as this.

MR WILLIAMS:   Yes.  If I can then move to, yes, her observation was that she believed she would have recommended reporting and that is at 253, lines13 to 14.  In paragraph 10 we summarise what we say is the high point of the common law duty, and that duty was on any view in the circumstances of this in which Ms Quinn’s dealing with the matter was held to be conscientious and thorough and properly so, with respect, should have been an end to it.  Then the ‑ ‑ ‑

GAGELER J:   So the common law duty obliged who?

MR WILLIAMS:   The Director or officers who were performing the function, but the Director is where the statutory obligation falls and as the repository of the power, he was not joined.  Nor was a case pleaded against him.

KIEFEL CJ:   The statute obliges consideration in any event, did it not?

MR WILLIAMS:   By the Director?

KIEFEL CJ:   Yes.

MR WILLIAMS:   Yes.  He could ‑ ‑ ‑

KIEFEL CJ:   ‑ ‑ ‑ of the various courses of action available.

MR WILLIAMS:   That is so.

KIEFEL CJ:   Otherwise you could not determine what was appropriate.

MR WILLIAMS:   That is so.  There is no question that 148B(5)(a) is mandatory, at least in most circumstances.

BELL J:   I am just not sure by your response to Justice Gageler’s question a moment ago quite what the appellant’s position is.  You were earlier asked whether the Carltona doctrine would apply and I understood you to accept that it would so that when we talk of the repository of the power, we might accept it was either Mr Maguire or Mr Frost.  Is that the way the matter has been conducted?  Is that accepted or ‑ ‑ ‑

MR WILLIAMS:   Well, there might be several different notions involved there.

BELL J:   Yes.

MR WILLIAMS:   We accept that Mr Maguire and Mr Frost had consistently with Carltona the capacity lawfully to exercise the Director’s power ‑ ‑ ‑

BELL J:   Yes.

MR WILLIAMS:   ‑ ‑ ‑ under 148B(5).  When I refer to the repository of the power, I refer to the statutory repository being the Director.

GAGELER J:   But I am trying to relate that to, I am sorry, to the common law duty ‑ ‑ ‑

BELL J:   Yes.

GAGELER J:   ‑ ‑ ‑ that you concede.  That is all.

MR WILLIAMS:   The common law duty did entail that the Director, either personally or through one of his officers, exercise reasonable care in the exercise of the function conferred by 148B(5).

GAGELER J:   To a point.

MR WILLIAMS:   To a point but – and the point where, well ‑ ‑ ‑

GAGELER J:   I am finding that really hard to pin down.

MR WILLIAMS:   The difficulty is, in our submission, that there is no bright line in these cases.  It is a combination of several factors that the court considers in addressing whether tortious liability should be imposed.  Could I endeavour then to assist your Honour in respect of a different question that your Honour has posed to me earlier – your Honour Justice Gageler has posed to me earlier?

GAGELER J:   I think that would be going back over old ground.  I can understand most of the submissions that you have made, if they were directed to the absence of a breach of the duty of care that you concede.  I follow that, but they are directed to an end point to that duty.

MR WILLIAMS:   Directed to?

GAGELER J:   A limit to the duty, and the limit appears to be at the point of formation of the belief to which the statute refers, is that right, or is it at some other point?

MR WILLIAMS:   The limit comes from the words “he believes appropriate”, such steps as “he believes appropriate”, and the limit is that there can be no common law – there can be no tortious liability imposed that constrains the proper unfettered exercise of that discretionary power for the purposes for which it was conferred by the statute.

BELL J:   How does that sit, then, with what seemed to be an acceptance somewhat earlier in an exchange that there may be circumstances in which the only appropriate exercise of the power would be to report to the police?

MR WILLIAMS:   In the exchange earlier, I accepted for the purposes of one limb of our argument that there may be cases in which – Julius v Lord Bishop of Oxford Cases, if you like.

BELL J:   Yes.

MR WILLIAMS:   Cases in which the circumstances are such that there is only one available exercise of the power, that is to take a particular course. 

BELL J:   What is the imposition of a common law duty doing in that instance?

MR WILLIAMS:   Well, in a sense, we take our points at two levels and Justice Gageler’s question which your Honour has just gone back to goes to the second of those, that is the point of coherence, or incoherence.  Our first point is about control and we say that whatever the position on a Julius v Lord Bishop of Oxford Case, this was a power in which sufficient control over the risk of harm was not vested by statute in the Director through the power to report to the police. 

The lack of control was a factor here that in accordance with the cases to which I have referred in detail should have led to the conclusion that there was no duty.  The second point we make in the argument is the incoherence point, and in respect of the incoherence point, we accept that there may ultimately be cases where the factual circumstances are such as to compel the exercise of a power.

I suppose to give an example that to a degree is against myself but we say not in any sense inconsistent with the argument, the case of a lost child.  The people who have primary ability to find lost children are the police, or the agency that has primary ability.  In a case such as that, where there was an apprehension about a child such as to trigger 148B and the child could not be found, there may factually be Julius v Lord Bishop of Oxford circumstances that would compel the exercise of the power and it could be compelled by mandamus as Chief Justice Brennan said in Pyrenees to report to the police so that their search functions could be exercised, perhaps after some initial search by the departmental authorities, but that is an example. 

But that arises at the second stage of our argument, as it were, or the second limb of our primary argument, our first argument.  We say that the appeal should succeed on the first point by reason of the control argument alone.  On top of the control argument, we say that there is an incoherence problem here of the kind identified by Justice Basten.  This was a power that involved wide discretionary factors plainly intended to be conferred on the repository of power.

Could I then attempt to address more fully a different question that your Honour Justice Gageler posed to me earlier?  It is found in volume 2 of the book, page 588.  It is the question of findings in respect of the Civil Liability Act.  In paragraph 101:

The second error is revealed in the earlier reasoning at –

In paragraph 104 of the primary judge is the finding that your Honour Justice Gageler described as the Wednesbury unreasonableness finding.  It is a finding that is certainly made in terms of the language of Wednesbury unreasonableness:

To say that no reasonable officer could have failed to take the omitted step is to assume that it was necessary, without asking if the abuse were continuing.

Factually, of course, we interpose there 28 April when the trial judge said the duty arose, they were in a place of safety and were not in the house:

That cannot be right.  What was required was a careful analysis of what was done, in the exercise of the very duty of care said to have been breached, before determining that no reasonable authority could have failed to take an additional step.  That exercise may be undertaken by reference to the exoneration of Ms Quinn, and having regard to the limited roles played by Mr Maguire, Mr Frost and Ms Whale.  Further, although there was a finding that Ms Quinn was not negligent, it is curious that the act which was said to constitute negligence “involved no more than” Ms Quinn, after notifying Montrose, reporting the matter to Mr Frost and him telephoning the police.

Of course, the evidence – your Honour Justice Gordon has referred to the evidence in that respect. 

Paragraph 104 of the primary judgment is on page 486 and the essence of it is summarised by Justice Basten.  But the key point we make in respect of it is that it arises at the standard stage – that is, at the 43A stage when the standard is being considered and, first of all and critically, without a process of construction of section 148B(5), nor of any reasoned consideration of the scope of the discretion conferred by it, nor of the discretionary factors that made the exercise of a power to report to the police such a self‑evidently challenging decision in the present case, particularly when one is saying, “Report to the police so that they can initiate a prosecution.” 

A welfare officer, having these responsibilities, would think long and hard before doing that in respect of these respondents in circumstances where the outcome would first be the arrest of the person, followed by possible bail, possibly with conditions – he was already on bail, of course – possibly with conditions that might or might not be complied with – he had, of course, made threats as to what he would do to TB if she reported it – followed by a criminal trial, committal hearing, full hearing in the committal hearing, cross‑examination.  This was, I think, before the detailed protections for young witnesses were in place in the State of New South Wales, confronting him in the courtroom twice, if I recall the procedure at the time in New South Wales correctly.

KEANE J:   And the reaction of the mother to the children, who have made these complaints.

MR WILLIAMS:   Indeed, and the brother, who was victimising in his own ways, according to the report.  This was a highly fraught decision, which would have not merely a range of predictable impositions of stress but also unpredictable factors, given the suicidal iterations that are referred to in the June report.

KEANE J:   And what about the aspect of it that it would seem to involve, at least to some extent, second‑guessing the Children’s Court?

MR WILLIAMS:   Indeed.  This matter was before the Children’s Court regularly and, as his Honour Justice Basten observes, the magistrate was closely engaged in the exercise of endeavouring to ascertain the best outcome, the proper course for these children, in circumstances where they were represented directly.  The respondents were represented before the Children’s Court.

GORDON J:   They had their own separate representation.

MR WILLIAMS:   They did, and, as Justice Basten observes, to say that “The Department”, as it is put, “should have reported” – to say 30 years later the Department should have reported when a Children’s Court magistrate conscientiously engaged in a process of ascertaining the best course to pursue for these children did not state that referring to the police was required or even prudent smacks of hindsight.

BELL J:   Just coming back to the primary judge’s finding for the purposes of the Civil Liability Act that it was not reasonable to fail to report to the police, that finding, which might be really one of law and fact, was that the subject of your notice of contention in the Court of Appeal?

MR WILLIAMS:   No.  Your Honour, this point arises at the standard stage.

BELL J:   Yes.

MR WILLIAMS:   Our attack focused at earlier stages and upon factual questions.  If it had been necessary for us to engage with standard of care then certainly, for all the reasons that I have given, paragraph 104 would have been squarely in our sights. 

BELL J:   Yes.  I am just wanting to understand where matters rest.  You would take issue with the suggestion that the primary judge’s finding was a pure finding of fact which has not been challenged.

MR WILLIAMS:   Yes, we certainly do, because it was explicitly a finding made for the purposes of 43A of the Civil Liability Act and made, as I have submitted, without starting, as was necessary, first with the process of construction of 148B(5), consideration of the scope of the discretion, the purpose for which the discretion was conferred, the paramount interests of the child, and consideration of duty and findings as to duty, followed by standard.  His Honour has skipped through and this is, in effect, expressed in merely conclusory language without the reasoning that would be necessary to support such a conclusion in circumstances where the evidence made such a conclusion at the very least exceptionally difficult for a judge to reach, with respect.

Your Honours, could I turn then to the second question before the Court, the question of vicarious liability.  That starts from paragraph 13 of our outline.  We refer to Parker v Commonwealth 112 CLR 295. In Parker we refer particularly to page 301.  The passage is short and the proposition, we think, almost axiomatic.  At 301, point 1:

But, however the principle of liability should be expressed, I think that the Commonwealth is only liable for the acts or omissions of a servant if the servant would himself be liable.

A recent statement of a similar proposition is found in paragraph 20 of our reply submissions, in an observation of Justice Charlesworth in Okwume v Commonwealth of Australia [2016] FCA 1252 at paragraph 236:

The allegation that the Commonwealth [and by analogy, the State] is vicariously liable for the torts of individual officers requires that [the applicant] prove liability in tort of the individual officers concerned.

GAGELER J:   Mr Williams, I do not have the particular reference to mind but at common law the Crown would not be vicariously liable for a tortious failure of a repository of statutory power to exercise that power.  I thought that the vicarious liability of the Crown, in those circumstances, was made the subject of statutory liability under New South Wales law.  I just do not know where one finds that particular provision.

MR WILLIAMS:   Your Honour, I apprehend that the answer to that is in – if your Honour will excuse me for a moment – actually, I do not have it – is in section 8 of the Vicarious Liability Act.  I am not sure if I can turn up its terms.  It is not here.

GAGELER J:   Would that be the starting point, though, if we are concerned with vicarious liability for what is said to be a failure to exercise this statutory power?  You need to step through section 8, do you not?  It may not have any material bearing on the outcome.

MR WILLIAMS:   Your Honour, I apprehend that it may not have been in force at the relevant time.  It came into force in September 1983.  So, it did not apply.

KIEFEL CJ:   Where does the Crown Proceedings Act fit into this?

MR WILLIAMS:   It permitted claims to be made against the Crown in the name of the State of New South Wales.

KIEFEL CJ:   Yes.

MR WILLIAMS:   Your Honour, the Law Reform (Vicarious Liability)Act 1983 No. 38 – I will turn up section 8. I do not believe it is in anyone’s authorities:

8Further vicarious liability of the Crown

(1)Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a):is in the course of the person’s service with the Crown or is an incident of the person’s service (whether or not it was a term of the person’s appointment to the service of the Crown that the person perform the function) or,

(b):is directed to or is incidental to the carrying on of any

business, enterprise, undertaking or activity of the Crown.

GAGELER J:   But that did not apply at the relevant time.

MR WILLIAMS:   It came into force in September – I am sorry.  I came into force on 28 October 1983 and was not retrospective.

GAGELER J:   I am not sure how we deal with this.

MR WILLIAMS:   Yes.  Would your Honour excuse me for a moment?

GAGELER J:   Yes.

KIEFEL CJ:   Mr Williams, would you be assisted by a short adjournment so that you can look into this question?

MR WILLIAMS:   Ten minutes would be of assistance, if it is convenient to the Court.

KIEFEL CJ:   We will adjourn until 12 noon.

AT 11.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.03 PM:

KIEFEL CJ:   Yes, Mr Williams.

MR WILLIAMS:   I am grateful to the Court for the indulgence.  The answer to the question is found in volume 1 of the appeal book in the pleadings, page 16 is the starting point.  This was relevantly identical for each pleading so page 16, paragraph 56 at the foot of the page:

In the premises, the First Defendant –

that is the State of New South Wales:

is vicariously liable for the acts and conduct of:

(a)the Second Defendant; and

(b)YACS’ officers and employees.

That pleading was met in the defence at page 47 in the identically numbered paragraph 56:

In relation to paragraph 56 of the FASC:

a.The first defendant admits that if any officer or employee of YACS (including the second defendant) did any act, or engaged in any conduct in the course of, and purporting to be done for the purpose of, carrying out the provisions of the CW Act in relation to the plaintiff, and thereby incurred or incurs civil liability (which is denied) in respect thereof then the first defendant is vicariously liable for such acts or conduct.

So, the matter was conducted upon the basis that the issue that your Honour Justice Gageler raises was not taken by the Crown.

GAGELER J:   All right.  So, what basis do we assess vicarious liability?

MR WILLIAMS:   On the basis of the pleadings that there was an admission that went this far.

GAGELER J:   Well, we are not applying the statute.  We are not applying the common law.  We are applying an admission in the pleadings.

MR WILLIAMS:   Yes.

GAGELER J:   I am just trying to work out the legal criterion that we are applying.

MR WILLIAMS:   The common law, your Honour, is the ‑ ‑ ‑

GAGELER J:   Well, the common law I think would say, no vicarious liability at all - I think.

MR WILLIAMS:   Well, that is so, but it was admitted that the Crown accepted vicarious liability to the extent identified in paragraphs 56(a).

GORDON J:   What are the relevant principles that we are to apply then when considering the question?

MR WILLIAMS:   Well, the principles deriving from the common law concerning vicarious liability, but with the qualification that the Crown did not contest its liability, its vicarious liability.

KIEFEL CJ:   Do we take it that there was no statute in force affecting this question at all?  Do we know that?

MR WILLIAMS:   No reliance was placed, I am told, at the time.

KIEFEL CJ:   No, but was there in fact a statute which dealt with the question of the liability of the Crown at the relevant time?

MR WILLIAMS:   From 28 October 1983, the question of the liability was dealt with in section 8 of ‑ ‑ ‑

KIEFEL CJ:   Was there no statute before then that dealt with the question at all?

MR WILLIAMS:   Of vicarious liability?

KIEFEL CJ:   Yes.

MR WILLIAMS:   I believe not.

KIEFEL CJ:   The Court will adjourn for a short period to determine the course that it will take.

AT 12.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

KIEFEL CJ:   Mr Williams, the Court is presently minded, subject to hearing from you, of course, to revoke the grant of special leave in relation to ground 2 concerning vicarious liability.  You would appreciate the Court’s concern in that regard.

MR WILLIAMS:   I do.  Can I say three brief things in respect of it?  I am sorry.

KIEFEL CJ:   I might just say something to Mr Morrison because the course we propose is to allow you both an opportunity to consider your respective positions, adjourn until 2.00 pm and then hear from each of you with respect to the course that the Court should take. 

Mr Morrison, if the Court did revoke the grant of special leave with respect to the second ground, the Court would like to hear from you as to whether there is anything left in the appeal – whether or not there is anything that the appellant can effectively argue for.

MR MORRISON:   If your Honour pleases.

KIEFEL CJ:   The Court will now adjourn until 2.00 pm to hear argument.

AT 12.16 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM:

KIEFEL CJ:   Yes, Mr Williams.

MR WILLIAMS:   Your Honour, there are two matters we would put in relation to the revocation of special leave on the second of the grounds.  The first is that, in substance, what the State did by its pleadings below was simply not to claim or not to plead Crown immunity but rather to admit vicarious liability for a civil liability if one were incurred by a particular officer or employee of the Department, on principles that would be familiar in respect of non‑Crown employees.

KIEFEL CJ:   But that, of course, puts this Court in a position where the concession does not reflect the true state of the law.

MR WILLIAMS:   In a practical sense there may not be any practical difference, bearing in mind that the pleading was made many years later, at a time when the Act had been in force for a number of years, and to plead the point would have involved relying on an advantage that was technically available to the Crown for some of the period up to 28 October 1983, notwithstanding that the legislation had been in force.

KIEFEL CJ:   That may explain the position of the appellant, the State.  It may well explain why it took the position that it did.  It does not alter the position on which this Court has to adjudicate.

MR WILLIAMS:   I accept that.  The point we would put in relation to it is that, in a practical sense, there is no great difference of principle between the pleaded position on which the case was run and the position under the statute, but we accept that the Court would not, in a formal legal sense, be making a determination pursuant to section 8 of the statute.

KIEFEL CJ:   Or the common law.

MR WILLIAMS:   Well, that is so.  It would be making a determination by reference to a pleading which permitted the invocation as against the Crown of common law principles of vicarious liability that operated generally in respect of other employers.  The second point that we would put is that it is a point of general or public importance whether a tortfeasor need be identified in circumstances such as this.  Those are the two matters we put in relation to the refusal of the grant or revocation of the grant of special leave on ground 2.

BELL J:   In the way the matter was pleaded I think the pleading was of a continuing duty to report, extending right to 2001 when the plaintiffs commenced proceedings.

MR WILLIAMS:   That is so.  In terms of the statement of claim and the amended statement of claim it went right through to 2001.

KIEFEL CJ:   We will hear from Mr Morrison on this question.

MR WILLIAMS:   May it please the Court.

KIEFEL CJ:   Yes, Mr Morrison.

MR MORRISON:   Your Honour, we would say in relation to it that vicarious liability for the acts of servants was what was admitted and that is the very thing that is sought to be contested.  Whether you have to identify the name of the particular servant – and whilst we are in a position to address that, it is clearly not going to assist in other cases, given both that this is a mixed case at common law and on statute.  But, in any event, we would be relying upon the concession made, which was why this issue was never addressed before the trial judge.  It was never argued in the Court of Appeal other than the question as to whether there should be identification.  So it is not going to assist in other cases and that was the only matter that was raised.  The other matter that comes out of this is ‑ ‑ ‑

KIEFEL CJ:   If the Court revokes special leave, where does that leave the ground 1?

MR MORRISON:   We would say this.  The State of New South Wales conceded a common law duty of care and that is absolutely clear.  They conceded it at first instance, they conceded it orally in the Court of Appeal and that is clearly recorded.  Justice Ward, for example, records it clearly.  The Crown now concedes today that it is a question of fact whether, in the particular case, it was necessary to report to police. 

That concession was made for the first time by my learned friend this morning when he said that there may be cases in which it is necessary to meet the common law duty of care by reporting.  That makes it a purely factual question.  It means that in some cases you do and in some cases you do not.  That issue was determined in our favour at first instance, just as the question as to whether or not reporting to police would have been effective was determined in our favour and from which there was no appeal.

So that the submissions made this morning, we would respectfully say, in that regard, were not open and there was no grant of special leave in respect of them in any event.  So that there are now only factual issues and no special leave was granted in respect of the factual issues.  It is a pure question of fact whether, in respect of the conceded common law duty of care, it was reasonable and appropriate in the particular case. 

We have a finding in our favour that it was based upon a very close analysis of very detailed facts.  This Court would need to grant leave to review those facts, if the appellant wishes to raise that issue.  They did not ever seek that leave.

KIEFEL CJ:   The grant of special leave, I take it, was based upon an argument based on Justice Basten’s dissenting judgment ‑ ‑ ‑

MR MORRISON:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ which says that the majority were wrong to determine the matter purely on a common law breach of duty of care and that they did not in fact take into account the statutory context.

MR MORRISON:   The problem about that is the common law duty of care had been conceded so that the ‑ ‑ ‑

KIEFEL CJ:   A common law duty of care.  The question that remained then was the interaction, whatever content was given to that common law duty of care, what that meant for the exercise of the statutory power. 

MR MORRISON:   Control and coherence, which my learned friend addressed this morning, were questions antecedent to whether or not there was a duty of care.  In this case those questions did not arise because the common law duty of care was conceded.  The only question was the width of the duty.  Once my learned friend concedes that in some circumstances, dependent upon the facts, that common law duty may require, on his concession, that reporting to police occur then we are down to a purely factual debate ‑ not a question of law; it is a question of what is reasonable in the particular case.  That is all that is left.  With respect, that was not a matter which was the subject of a grant of special leave or an application for special leave.

KIEFEL CJ:   We should hear you on that latter question, Mr Williams.

MR WILLIAMS:   Your Honour, the scope of the duty which has always been in contest is a question of law, not fact.  There are two aspects, as I was at pains to emphasise this morning, and these are questions of law.  The first is the question of control, whether on this particular statutory framework control was sufficient for a duty to be imported and, secondly, the question of coherence.  In the course of addressing the question of coherence I accepted that the particular hour in question might be one that, in some circumstances, would require a notification.

Indeed, there was an example given by Justice Sackville in the earlier case, in the strike out of a case where a child had been removed from a place of safety by the perpetrator and their whereabouts was unknown.  But that is in no sense to turn the important questions of principle that arose by the first ground into questions of fact.  It is merely to concede that this power, like perhaps all others, might at some extreme factual level, invoke Julius v Bishop of Oxford questions.

In any event, in respect of the first ground, some of the same questions arise as arise in respect of the second.  Once one recognises that this is a power which is conditioned by satisfaction of the officer, as I observed in addressing the power, it highlights the importance, if a Carltona point is being considered, of addressing who is the officer who is said to have reached that state of satisfaction?  Who is the agent of the Minister who reached that state of satisfaction and by reference to that person, how he or she is said to be negligent?

There was, of course, only one officer identified below and that was Ms Quinn and there was never any question of her having authority to exercise the 148B reporting power, the power to report under 148B to police.  She had other authorities which she discharged.

KIEFEL CJ:   Is there anything further you wish to say by way of reply on the question of ground 2, other than what you have put forward about the interrelationship really between the two grounds?

MR WILLIAMS:   No, your Honour.

KIEFEL CJ:   Thank you.  Is there anything you wish to say, Mr Morrison, in reply to the question about ground 1?

MR MORRISON:   Merely that nothing that my learned friend has said, with great respect to him, is that it would turn what is essentially a finding of fact as to what is reasonable and appropriate in a particular case into a question of law appropriate for this Court.

KIEFEL CJ:   The Court will adjourn for a short period to consider the course that it will take.

AT 2.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.21 PM:

KIEFEL CJ:   It has come to the Court’s attention during the course of argument that ground 2 is based upon a concession made by the appellant in its defence as to vicarious liability.  The Court accepts that the concession was made for good reasons but it may not reflect the true state of the law and does not invite elucidation of any legal principle by this Court.  Had that been a matter of which the Court was aware on the application for special leave, it would not have been granted.  Special leave with respect to ground 2 is therefore revoked. 

The Court reserves its decision on the question of whether ground 1 should be revoked, and will hear full argument on that ground.

Have you concluded your argument in relation to ground 1, Mr Williams?

MR WILLIAMS:   I have, your Honour, save only for this, to the extent to which ground 1 involves a question of the Carltona principle, it is necessary to refer to some evidence briefly in respect of that.  That evidence is found in volume 1 of the book, starting at page 104, about line 35.  I

would invite the Court’s attention from line 35 through to line 48 on that page.

GORDON J:   I am sorry, what does this evidence establish?  What is the proposition that we are to take from this?

MR WILLIAMS:   It simply goes to what the agency authorities were within the Department for the exercise of the statutory power.

GORDON J:   I understand that but are these propositions set out somewhere?

MR WILLIAMS:   In a sense they were developed in relation to ground 2.  I am not sure that the references are set out.  They are, however, brief so, page 104, lines 35 to 48; page 107, lines 40 through to 108, line 5; page 270 in the evidence of Mr Frost from about line 28 to line 50 at the foot of the page and page 265 in the evidence of Mr Maguire from about line 5 on the page, through to about line 20.  That is the evidence to which we refer. 

We say in respect of the first ground that the points that were developed in respect of control, the scope of the duty, matters we have put as to control and to coherence are pure questions of law. They stand on their own feet without any need to rely on any aspect of the second ground.  They have within them an additional aspect that is partly in common with the second ground but the points about the scope of the duty, by reference to control and coherence are independent questions of law which are unaffected by the state of the pleadings as to vicarious liability.  Those are our submissions.

KIEFEL CJ:   Thank you, Mr Williams.  Yes, Mr Morrison.

MR MORRISON:   Thank you, your Honour.  Your Honours, if I may, I will very briefly go through the sequence of events, simply because it is very important to the way in which the decisions had to be made to understand what was happening at particular times during 1983, insofar as we can identify it and we have provided in our written submissions as good a reference to the evidence and the basis for these assertions which I will now briefly go through.

First of all, clearly this was a case of repeated and severe abuse as Justice Campbell said, commencing at the age of seven in respect of one of the girls and the age of four in the other, and they were respectively aged 15 and 12, almost 13, at the time at which the older of the girls complained to YACS and complained both in respect of herself and her sister.

The stepfather had a long criminal record, including eight years’ gaol which was sexual offences, a number of which were against children.  At the time, he was on bail from January 1983 for the rape, using a knife and handcuffs, of his son’s 15‑year‑old girlfriend.

The Department knew his criminal history from the outset – appeal book 487, at line 15, and at page 651, line 50 and the Department accepted, after the early interviews, that the abuse had occurred, not least because the mother conceded the abuse and was, according to the district officer, in her words “unlikely to protect them”.  Later on, as she put it, “The mother could not be trusted to protect the girls”.

The steps that were taken were to charge the girls as neglected children in accordance with the then practice and to briefly remove them from the home - DC, the younger girl, for a couple of weeks – maybe three weeks; the period is not precise – TB for a longer period.  But very early on she is coming back daily to the home to visit her family so, while she is staying nearby with the grandmother, she is back in the house.

The stepfather initially leaves home very shortly afterwards to the knowledge of the district officer – and this is all in her report of June 1983 – comes back to the home.  When he leaves again, he is still visiting, in the words of the district officer, “frequently, almost daily” and later still, in 1984, when the younger girl runs away from home, she did it because her stepfather was “coming there all the time”, according to the district officer’s report.  So the abuse continued on the findings which were made by the majority in the Court of Appeal and it continued during the period when the self‑harm by TB occurred because the stepfather had access to the girls then.

So the suggestion that TB was psychologically unstable in some way as to make her an unsuitable candidate for giving evidence in court wholly ignores the fact that she was then being sexually abused on the findings of the majority in the Court of Appeal.

The Department knew that the stepfather was not party to the Children’s Court orders.  They knew that the mother was not obeying the orders and keeping the stepfather away.  They knew, according to the district officer in her reports, that great pressure was being placed upon the children, TB in particular, to allow the stepfather access to them.  The district officer reported in September that the stepfather “freely admits” the abuse, suggesting that he was unrepentant and “unlikely to change”.

When the words “freely admits” were written, there was no indication as to what dates that was over.  There was no suggestion as to whether or not the abuse had continued.  The district officer was totally silent as to it, but the district officer was very concerned – indeed, said it was vital that they “be protected from the possibility of further abuse and from living in fear of abuse”.  Same report – that is appeal book 321 and 322.

It was in June that the district officer reported that TB cut her wrists twice, injured herself deliberately by dropping a bed on her hand, and asked to be locked up as uncontrollable.  That report, incidentally, was initialled by Mr Frost, her immediate superior.  So clearly she had reported or had told Mr Frost, at least in writing, about it, although he had no recollection whatever of the case and nor had Mr Maguire.  She was also said to be terrified of her stepfather, who threatened to “get her” in the September report.  DC, at the age of almost 13, had commenced bedwetting. 

As at 6 May Justice Campbell found that the Department knew that there was a high degree of probability the abuse would continue if care was not taken and it was likely to be very serious.  The departmental decision‑makers were, as my learned friend has correctly said and referred correctly to the evidence, Maguire and Frost.  Maguire was the senior officer; in his absence Frost made the decisions.  Their evidence was that it was the “invariable” practice to report such cases to the police – appeal book 411, line 8.  The interdepartmental guidelines between YACS, the police and Health required it in serious cases, and this was about as serious a case as you could get – appeal book 446 to 447.

BELL J:   Did the departmental guidelines require reporting to police, as distinct from consultation about that?  Was the requirement to report to Montrose, which I think was within the Department?

MR MORRISON:   It was more than that; it was to report to the Child Protection Unit of the police.  That was part of the guidelines.

BELL J:   I see.  Then there was to be some consultation between the Child Protection Unit and the staff of the Department, is that ‑ ‑ ‑

MR MORRISON:   Yes.  But the reporting to police was said to be required ‑ in cases of this sort should be done immediately.  The guidelines are set out, commencing at appeal book page 281.  It sets out that senior officers:

may make decisions to involve Police Officers.

That is at 283, about halfway down the page, at about line 33, and then it is said:

It would be appropriate for such decision to be made in any of the following circumstances –

and the fourth dot point is:

Where the child’s safety with caretaker(s) cannot be assured without court action against the perpetrator -.

That was this case.  A little further down, number 6, another alternative:

Where repeated and severe abuse has occurred to the child -

That applied here as well.  Then the final point:

Any decision to involve Police Officers must be made as soon as possible after notification.

There is reference to the role of the Police Child Mistreatment Unit over the page at 284 at about line 22.  Mr Maguire said:

Any level of sexual abuse –

would require reporting to police.  That was his policy for himself and his departmental officers ‑ would require.  That is at appeal book page 266, point 8.  He said it was “a formal requirement” that reporting occur, appeal book 265 at line 5.  It clearly was not reported and the abuse continued. 

It has been suggested both in writing and again this morning that reporting would not necessarily have led to charges being laid.  This was a matter which was debated at first instance.  Experts from both sides were called.  The expert called on behalf of the appellant was the State of New South Wales former DPP.  Both of the experts have practised in the criminal field at that time. 

The experts were in agreement that there was a high degree of likelihood that charges would have been laid in this case.  They were in agreement that those charges would have been effective in protecting the children because either bail would have been refused given that he was already on bail for a very serious offence or because those charges would have had such strict conditions that if he had been seen within a mile of this house or of the children, that would have been the end of bail.

It was perfectly clear in those circumstances that Justice Campbell was entitled to find as he did, that reporting would have been effective.  There was no appeal from that finding.  The notice of contention in the Court of Appeal did not raise that issue and ‑ ‑ ‑

BELL J:   When you say that ‑ did not raise that issue – you refer to the finding for the purposes of the Civil Liability Act in relation to the liability of a public authority, do you?

MR MORRISON:   No, I do not, your Honour.  I am referring to whether or not reporting to police would have led to charges and been effective ‑ ‑ ‑

BELL J:   I see.

MR MORRISON:   ‑ ‑ ‑ and effective in protecting the girls.  Justice Ward deals with this and notes that that causation issue was not raised on the appeal and her Honour notes that at appeal book 682, line 55 to 683, line 10.  There was no contention that the charges would not have been laid or that it would not have been effective in protecting them.  It is not open to raise that issue now. Special leave was not even sought in respect of that issue and it was not the subject of special leave and could not have been, given that it was not argued in the Court of Appeal. 

BELL J:   Well, causation is not raised by the ground with which we are concerned.

MR MORRISON:   Indeed.

BELL J:   That ground - it directs attention to content and scope of duty.

MR MORRISON:   Indeed.  The next matter, which is the matter your Honour raised with me a moment ago, was the additional finding required by the Civil Liability Act.  Justice Campbell found, at appeal book 486, line 58, that:

no authority acting reasonably could properly consider the failure to report the abuse of TB and DC to the police to be a reasonable exercise of the powers conferred –

That was the finding, and whilst in a sense it may have been indirectly challenged in the Court of Appeal, the majority in the Court of Appeal did not disturb that finding.  That finding stands.

KIEFEL CJ:   The majority in the Court of Appeal did not really advert to the statutory provisions.

MR MORRISON:   Quite so.

KIEFEL CJ:   Is there some assumption – was the case run upon the basis that there was a coincidence between the content of the duty at common law and the content of the duty under the statute?

MR MORRISON:   No, your Honour.  The duty under the statute clearly is a much higher duty.  In order to sue a statutory authority, to which section 43A of the Civil Liability Act applies, you have to establish that no authority in its position, acting reasonably, could properly consider the failure to be a reasonable exercise of the powers conferred.  That was the finding that was made.  So it was at a much higher level than the conceded duty of care in this case, which was merely to take reasonable care in accordance with the common law. 

His Honour, at first instance, was saying, “The statute appears to apply, the higher duty is required.  I find that higher duty has been established.”  But if all we are talking about is the common law, it is a much more basic finding that it was manifestly a breach of the duty of care not to report.

Can I add to that?  Whilst it does not directly affect the civil law, the criminal law at the time was the old law of misprision of felony - Sykes v Director of Public Prosecutions [1962] AC 528 and, in particular, Lord Denning at 563. That said that the “duty of every citizen is to report either a felony” or as His Lordship said “serious criminal conduct” because you do not have to know what a felony is, “to the police or other appropriate authority”. That was the law in 1983. Now, that was a matter which was raised early and debated in the previous Court of Appeal decision.

It does not directly affect the duty but it does assist in giving content to the responsibility involved by officers who are informed of the commission and believe in the commission of a serious criminal offence.

GAGELER J:   In your submissions you have been using the words “The Department”.

MR MORRISON:   Yes.

GAGELER J:   “The Director” is defined in the Act as the permanent head of the Department.

MR MORRISON:   Yes.

GAGELER J:   His Honour’s finding at page 486 is in terms of “the Department”.  Was there any distinction sought to be drawn at first instance between the Department, the Director and the three relevant officers of the Department?

MR MORRISON:   Not in that sense, your Honour, no.  YACS and the Department were regarded at first instance as relevantly identical.  As far as the way in which it was conducted at first instance was concerned, the authority given to the Director, which he could delegate, was being exercised by Mr Maguire and Mr Frost - Mr Maguire when he was there; Mr Frost in his absence. 

Of course the district officer, having reported to her superior, Mr Frost, who indeed was present at the interview with the mother – we know that from the record of interview - she, having reported to her superiors, had met her Sykes v Director of Public Prosecutions obligations, and his Honour found, and there was no appeal from the finding, that she had done what was appropriate for a person of her rank.  The decision‑maker was either Mr Maguire, if he was there or Mr Frost if he was not.

Since we are talking about a continuing duty, because with each increasing piece of knowledge of his increasing access to the girls as time went on, reflected in the reports to the court, further decisions had to be made as to the adequacy of what was being done.  Whatever the decision was made in April, and his Honour Justice Campbell thought it was clearly inadequate as at 28 April, and it certainly proved to be so, but particularly given what had been admitted by the mother about knowing about years of abuse ‑ ‑ ‑

BELL J:   But as at 22 April - if that is the date - both the children were living away from the family home at that time.  Is that right?

MR MORRISON:   Not at that date, no.  I think the 22nd was the date of actual reporting by TB, then following interviewing TB then goes and lives with friends.

BELL J:   Yes.

MR MORRISON:   DC is then removed for a couple of weeks when she has been interviewed, and she confirms that she had been sexually abused from a young age, and then the mother is then interviewed and she says, “Yes, I knew about it; they told me about it.”

BELL J:   Now, the date on which the primary judge concluded that the relevant officer within the Department should have notified the police was a date shortly after notification in April of 1983.  Is that right?

MR MORRISON:   Yes.

BELL J:   At that time each of the girls was living away from the family home.

MR MORRISON:   Indeed.

BELL J:   Each of the girls was living away from the family home and the question of their future care was before the Children’s Court.

MR MORRISON:   At that stage it had been reported to the Children’s Court, but the Children’s Court was known by the Department to have no authority over the stepfather.  He was not party to their proceedings; they could not make any order which bound him.

BELL J:   Indeed, but what the Children’s Court could do was to take such action as the court considered appropriate to provide for the safety and wellbeing of the children.

MR MORRISON:   Yes, but all they could do at that stage was to temporarily remove the children.  Now, was the solution going to be that the children would have to be permanently deprived of living with their mother and their brother because the stepfather would continue to have access to them if they left a place of refuge?  It seems an extraordinary proposition to suggest that the solution was, in a sense, to punish the victims and ignore the perpetrator, so that they were deprived of a home life, they were deprived of access to their sibling; they were deprived of the ability to see each other.

Now, in fact, as at that date that his Honour chose, one other thing was known.  By then, the prosecutor in the Children’s Court had disclosed to Ms Quinn the whole of the criminal record and his Honour found that and that is based upon a debate between the parties but ultimately he determined that that record was known to the Department by then, including the fact that he was on bail for a very serious criminal offence.  So, the basis of the decision made at that stage, would have weighed all of those factors into account in relation to whether or not reporting was appropriate.

His Honour then went on to say that he did not have to decide whether or not reporting on future occasions - his Honour acknowledged that we had argued that it was a continuing duty but said he did not have to decide it in the light of that finding. 

Now, of course, within a couple weeks DC is back, within a very little time longer TB is at least back on a daily basis and by June both are living back in the house and the stepfather is there regularly.  There is not the slightest sign in any of the reports to the Children’s Court, in the Children’s Court record or in the reports of the district officer of any consideration whatsoever of reporting to police; just no mention.  It is totally silent in relation to it.

In September, of course, he makes admissions on interview; winks salaciously at the two female YACS officers, shows considerable anger at the older girl for reporting him and for breaking up the family, is assessed as being a continuing danger to the girls in terms of further abuse and yet her report which sets all that out in considerable detail, makes no mention of any consideration of reporting to police.  The police never interviewed the girls; never interviewed the mother, never interviewed the district officer.  No wonder the judge at first instance and the Court of Appeal unanimously found that no reporting had occurred.

KIEFEL CJ:   Your case is one of lack of advertence to the possibility of reporting.  Has that shifted somewhat from there being an outright duty to report in a case of this kind?

MR MORRISON:   We have never said that every case that went to YACS had to be reported.

KIEFEL CJ:   In a case of this kind.

MR MORRISON:   In a case of this severity it was their invariable practice, it accorded with their own guidelines and, as Justice Ward said in the Court of Appeal at 642 at line 40, the guidelines were what the Department accepted was a “proper and reasonable response” and, at 643, line 60:

It cannot seriously be contended that it would have been sufficient in the exercise of reasonable care in the performance of the Director’s statutory powers in the present case, that there was in place a protocol that might or might not be followed -

We say that those words are very powerful in the circumstances of this case.  If their protocol was that in every case which was serious there should be reporting to police then why did it not occur here?  It ultimately does not matter whether it was an oversight or an incorrect decision.  The finding that no authority acting reasonably could properly consider the failure to report to the police to be a reasonable exercise of the powers conferred puts the findings of fact as they stood at the end of the Court of Appeal in a place where the respondents had shown far more than the ordinary common law duty of care, which was merely to take reasonable care in the particular circumstances.  If they did not follow their invariable practice, if they did not follow their own guidelines then this was the very sort of case where reporting was necessary.

GORDON J:   In paragraph 71 of your submissions you talk about:

The better view is that the Respondent inadvertently did not follow its own established procedure of reporting.

MR MORRISON:   We did say that, your Honour, and on reflection it really does not matter whether it was inadvertent or not.  It really was not an issue which was canvassed, and it is purely a matter of speculation.  We do not know why it was not reported.

GORDON J:   You then go on to say:

If the Appellant failed to consider reporting it did not exercise the discretion.

That is why I am asking you.  It is clear on Ms Quinn’s evidence at least she says that on unchallenged evidence it would appear that her usual practice was for them at least to consider the reporting.

MR MORRISON:   Yes.

GORDON J:   What is your complaint?  Your complaint is what, that they were under a duty to report?

MR MORRISON:   Ms Quinn went a little bit further than that, your Honour.  She said – and my learned friend referred to it this morning – at 253, line 14, that she believed she would have recommended reporting.  That of course is markedly inconsistent with the proposition that was being advanced earlier this morning that TB was in no state, according to Ms Quinn’s view, for reporting to go ahead.  Ms Quinn did not say that.  She said that she believes she would have recommended reporting.  But there is no record of reporting occurring from either of the officers who had the power and the authority to exercise the Director’s power under the section.

GORDON J:   At 235 does not Ms Quinn say:

I don’t have a sufficient recollection of back in that time.  But it was the usual practice to have that kind of a discussion –

So, at least, her evidence was that the usual practice was to turn her mind to it.

MR MORRISON:   Indeed, your Honour.

GORDON J:   So what I am asking here is:  is the position that you say that because of the circumstances of this case there was a duty to report?

MR MORRISON:   In the circumstances of this case, yes.

GORDON J:   And that is your case?

MR MORRISON:   Indeed.

GORDON J:   And nothing else?

MR MORRISON:   No, we do not say that reporting was mandatory in all cases and, indeed, it was not their practice and the guidelines did not make it mandatory in all cases.  But Mr Maguire said ‑ ‑ ‑

GORDON J:   No, no, I understand.  I just want to make it clear that I understand – your case is that here, in the circumstances of this case there was a duty to report?

MR MORRISON:   Yes, and whether it was in April, May, June, July, August or September or all the way up until DC ran away from home because of the frequency of the stepfather coming and ends up back before the Children’s Court being admonished for fleeing from abuse, according to the district officer’s own report to that court, there is just no evidence of any consideration being given at any stage.

GORDON J:   No, it is a different question.  Consideration versus duty to report are two different matters.

MR MORRISON:   Indeed.

GORDON J:   That is why I am asking you:  in that paragraph of your submissions you talk about inadvertence, no evidence to consider.  That is why I took you to Quinn’s evidence.  Is that your case or is it a case that, regardless of whether they looked at it, there was a duty to report?  It is apparent on Quinn’s evidence ‑ ‑ ‑

MR MORRISON:   First of all, there was the duty to consider it, self‑evidently.

GORDON J:   Do you say that duty was breached?

MR MORRISON:   Either it was breached or, if there was consideration, we just do not know.  There is no record of any consideration.

GORDON J:   You have Quinn’s evidence.

MR MORRISON:   Well, her evidence is that she was not the decision‑maker.  She was not found to have been capable of reporting and we accepted that.  We did not appeal from that decision.

GORDON J:   That finding.  There is no finding against her that she did not consider it.  I mean, her evidence was that her usual practice was that there would have been a discussion about it.

MR MORRISON:   Indeed.  So the complaint really is confined to the decision‑makers and ‑ ‑ ‑

GORDON J:   What is the complaint?

MR MORRISON:   The complaint is that in the circumstances of this case there was no reporting.

KIEFEL CJ:   That is to say there was an obligation to report, regardless of what the decision‑maker considered were any countervailing considerations arising under their general discretion.

MR MORRISON:   Well, they did not think they had a discretion in cases of this degree of severity.  The majority of cases were not reported to police.  Your Honours will find reference to that at 262 at line 35.

KIEFEL CJ:   No, what I am really asking is that - what you are saying is and what I think the majority in the Court of Appeal may have said is that there is no other countervailing consideration or no collocation of factors which could have weighed against the obligation to report.  It was as plain as that.

MR MORRISON:   As simple as that.  The fact of the matter is in cases of this degree of seriousness, Mr Maguire said, any level of sexual abuse would require – and that his word – reporting.  It was invariable practice, formal requirement, so consideration in that circumstance, if Mr Maguire had considered it, or if it had been Mr Frost had considered it, according to Mr Maguire’s own practice and his own requirements, because he said he made them requirements, it should have been reported.

KIEFEL CJ:   But that is not to say that there were not other courses of action available.

MR MORRISON:   Well, we know that the Children’s Court was never going to be a solution because the stepfather ‑ ‑ ‑

KIEFEL CJ:   Well, that is determining the correctness of a decision ‑ ‑ ‑

MR MORRISON:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ just concentrating on there being other courses of action open to someone considering what action is appropriate.  That was a course of action and it was taken.

MR MORRISON:   Well, this is certainly not a case of pure nonfeasance in the sense that they did take some steps.  That is so, but those steps were never going to be an adequate solution and that is not to a criticism of the Children’s Court.  The Children’s Court was not empowered to deal with the stepfather and the Children’s Court was told, for example, in the September report that the mother was permitting access, despite the Children’s Court order.

KIEFEL CJ:   What about the matters in the report of the welfare officer to which reference was made this morning that identified the family as having complex problems and that the issues surrounding sexual abuse in a family have more than one dimension.

MR MORRISON:   I addressed that ‑ ‑ ‑

KIEFEL CJ:   In its time, of course, and putting it in its time.

MR MORRISON:   All of that is perfectly true but how does that touch upon the decision‑maker’s invariable practice, formal requirement, guidelines ‑ ‑ ‑

KIEFEL CJ:   Well, guidelines are guidelines.

MR MORRISON:   But Mr Maguire said any level of sexual abuse would be reported invariably and he had made it a formal requirement that they be reported.  So they have not met their own standard, they have not met their senior officers’ own approach to what was appropriate and reasonable but the suggestions made this morning that TB would not have been up to reporting to police were debated at first instance and there was a decision about it which was not the subject of appeal.  Justice Campbell dealt with that issue at appeal book 505, commencing at line 29.

There is quite a lengthy passage dealing with this but if I can paraphrase it, his Honour found that TB was in his words “robust” and he ultimately concluded after reviewing her course of conduct, including the fact that she as a 15‑year‑old had been the one to report to YACS in the first place:

I reject the idea that her “condition” would have been a reason not to lay charges.

That was the factual finding and that was not the subject of challenge on appeal.

KIEFEL CJ:   But this is the difference, is it not, between doing a matter with hindsight, as is put, and considering the position of the decision‑maker at the time and given honest assessments of persons presenting.

MR MORRISON:   Justice Campbell was assessing the status of TB at the time, on the information available to him, following a debate about whether or not she was up to it.  The only evidence which suggested that she might not be was an alleged conversation which his Honour found did not take place because he found that the visit to the police station in which DC said she had spoken to Ms Quinn, but never to a police officer, and Ms Quinn told her something about it.  Ms Quinn could not remember that conversation and Ms Quinn herself said, in the passage I had referred to earlier, that she believed she would have recommended reporting.  That was her evidence before Justice Campbell.  That was the passage at 253, line 14.

BELL J:   Regardless of his Honour’s assessment that, on the material available at the time of the trial, 30 years afterwards, that TB was robust and would have not suffered any psychological difficulties had she given evidence at committal and then at a trial in 1983 or 1984, what one is looking at is the proposition that the obligation imposed on the Director, having caused an investigation to be made, to take such action as he considered appropriate, required reporting to the police in circumstances where, among other considerations, the question of the stress on a young complainant of giving evidence confronting her accuser in court both at committal and trial, might have been a reasonable consideration for a person whose focus was not vindicating the criminal law but a concern for the welfare of the child.

MR MORRISON:   Well, the problem about that is that the decision‑makers, Maguire and Frost, did not say that our invariable practice could be breached on occasions as a matter of discretion.  They said it was invariable practice where sexual abuse was concerned and in serious cases.  They did not leave that ‑ ‑ ‑

KIEFEL CJ:   Well, if that is ‑ ‑ ‑

MR MORRISON:   ‑ ‑ ‑ avenue of consideration and they were the decision‑makers for the Director.

KIEFEL CJ:   Well, if that evidence was accepted it would follow that they reported.

MR MORRISON:   But we know they did not, and therefore that is why we raise the issue:  did they consider it?  What we do not know is any reasoning process, and such evidence as there was suggested that, even at the outset, TB was robust.  But you then take a step forward.  By the time we get into late May, DC is back home, TB is either home or visiting home daily, the stepfather is getting access to them.  In June there is a report that DC is seen sitting on the stepfather’s knee, recorded by the district officer.  Surely to goodness, even if that decision in April had been one which was open then, it must have been known that it was not the correct decision and was not offering protection as at June.

BELL J:   By this time the matter was before the Children’s Court.

MR MORRISON:   Yes.

BELL J:   And, whilst you say rhetorically there was only one proper way to deal with the issue, it was not the approach that occurred to the Children’s Magistrate.

MR MORRISON:   It is not mentioned by the Children’s Magistrate; we do not know why.  It was not mentioned in the reports to him; we do not know why.

KEANE J:   It does not seem to have occurred to their independent representatives either.

MR MORRISON:   Yes.  There was some issue at first instance about how much the children’s representative actually spoke to the children and to what extent they were inside the court and to what extent the debate was taking place in their absence.  It is probably not helpful to go into that area at this stage because there was an argument about that and I would simply put that to one side.  But it would not be conceded, for example, that their so‑called representative actually had a great deal of contact with them.

KEANE J: Mr Morrison, just while you are being interrupted, at page 284 in the guidelines, in paragraph 3.3.2 the guideline deals with a “Decision to Lay Charges Under the Crimes Act and/or Complaint Under the Child Welfare Act”. This is evidently a guideline following a decision to involve the police under 3.1.3.

MR MORRISON:   I am sorry; did your Honour say 3.3.2?

KIEFEL CJ:   I think it is 3.2.2.

KEANE J:   You are quite right:

Officers of the Police Child Mistreatment Unit may make decisions to lay charges . . . when consensus has been reached after consultation with the S.E.O. –

or a senior district officer and so forth. 

Decisions to take such action should be made in similar circumstances to those listed in 3.1.3 above.  Where consensus is not reached the matter shall be referred to the Assistant Commissioner (Crime) and to the appropriate Regional Director of the Department of Youth and Community Services.

That seems to suggest two things.  One is that complaint to the police did not automatically result in charges being laid under the Crimes Act; and, secondly, that there would be a need for consultation in relation to whether that should happen between the police and officers of the Department.  The guideline itself seems to recognise the possibility of competing considerations that need to be thrashed out before proceedings are actually commenced under the Crimes Act.

MR MORRISON:   We can readily accept that there are competing considerations which have to be considered.  We merely say that in the circumstances of this case it cried out for it, for reporting.

KEANE J:   But reporting itself does not matter, does it?  The theory of your case is that reporting for itself is only significant because it leads to charges being laid.

MR MORRISON:   Yes.

KEANE J:   And this guideline suggests that that is not necessarily automatic.

MR MORRISON:   No, and one can envisage circumstances – and I referred earlier to a majority of minor cases which were not reported to police because they did not meet the guidelines.  This was not a minor case.  This was a major instant, one which invariably required reporting.  The next question then is:  what would have happened if it had been reported? 
Yes, there would have been discussion but, as part of that discussion, the first thing that would have had to have been done is for a police officer or police officers to interview the two girls and make their own assessment of them and to interview the mother and obtain whatever evidence they could from her and to interview Ms Quinn.  None of that happened.  There is no record of the police being involved at any stage. 

So that decision‑making process that your Honour has referred to at 3.2.2 was never triggered.  But this was such a serious case that the expert evidence was and the finding was that in this particular case charges would have been laid.  It was overwhelmingly probable.  It cannot be said to be a certainty but overwhelmingly likely that charges would have been laid and that either bail would have been refused or such restrictions placed as to offer the girls real protection.  That was the finding and we would say one which was open to the trial judge on the expert evidence available to him and including expert evidence called by the State of New South Wales.

In those circumstances, yes, true it is that it is possible that in other cases a different result may occur.  But not in this case on what was found by the trial judge and which is left undisturbed when we come to this Court on the findings of fact, because that is ultimately a factual finding.  It was not challenged on appeal and no leave was granted to raise it here.

KIEFEL CJ:   In the way in which you have approached the argument today do we take it that it is your contention, as you put earlier in relation to the revocation argument, that the appellant is in the realms only of fact and that there is no real question of law here to determine?

MR MORRISON:   Very much so.  We had understood that the appellant said that their duty was only a duty to consider and, indeed, as I read their submissions that stood out.  But what was conceded this morning was that there would be cases in which there would be no alternate result or nothing which would meet the duty of care other than to report.  Once that concession was made ‑ ‑ ‑

KIEFEL CJ:   You say this is such a case and that is a question of fact.

MR MORRISON:   Yes, we say this is such a case but in any event that is a finding of fact.  That finding of fact was made below.  It is not a matter for special leave.

GORDON J:   Can I test that just by reference to one passage in Justice Basten’s judgment at paragraph 132 - and I know it goes on to deal with whether the abuse continued.

MR MORRISON:   Yes.

GORDON J:   Page 598.

MR MORRISON:   Yes.

GORDON J:   As I read that passage, Justice Basten is saying, well, even if there is a duty to report and for present purposes, in particular cases, he says that does not get you all the way there because you have to go on and consider whether what was necessary, even in the circumstances, to bring about the report; that is how I read paragraph 132.  In other words, there was some further need for it to be exercised.  Is that right or am I misreading paragraph 132? 

MR MORRISON:   Is your Honour referring to the last sentence:

That question depended upon what relevant officers in YACS knew or ought to have known of the risk of ongoing abuse.

GORDON J:   As I read it, he says, “I accept there is a reasonable, invariable practice” but he says that failure to report did not constitute a breach of duty of care owed to the children.  In other words, “I accept there may be a duty to report but the failure not to do it may itself not be sufficient because of some other factual circumstance or some other reason peculiar to them”.  Is that the realm we are in here or are we in a different realm?

MR MORRISON:   No, that is the realm but that is a factual issue for the particular case.  His Honour, of course, was dissenting on that issue.  His views as to whether or not the abuse continued were not the views of the majority in the Court of Appeal.

GORDON J:   No, but this passage appears under the heading “Negligence of other officers”.

MR MORRISON:   Yes.

GORDON J:   This is not in the context of - this is dealing with ‑ ‑ ‑

MR MORRISON:   That is true.

GORDON J:   ‑ ‑ ‑ a negligence question; whether or not there has been breach of the duty.  So we have moved on from ‑ ‑ ‑

MR MORRISON:   Yes.

GORDON J:   There is a duty to report – what else is required, in other words.

MR MORRISON:   Well, there has to be a decision made by police, self‑evidently, and it does not automatically follow that because there is a complaint charges will necessarily be laid. There could be countervailing considerations but on the facts of this case, the view of both experts and the view adopted by Justice Campbell and which is undisturbed, is that it was not a certainty but overwhelmingly likely that there would have been charges laid and the result would have been effective protection for the girls.

Let us not forget, the test is not what was known as at April 1983 or even June 1983, but in September and again in April 1984, because the abuse is continuing and is known.  It is known that these girls were at high risk.  It is not fair to say that the district officer knew that they were being abused.  She does not recall being told whether or not the abuse was continuing but equally, she says if she had asked the question, whether the answer was yes or no, she would have recorded the answer and the inference to be drawn from that, of course, is the one drawn by the trial judge that she did not ask the question.

We do not need to speculate as to why she would not ask in circumstances where DC has been seen sitting on the stepfather’s knee and where self‑harm is occurring and where the girls are extraordinarily distressed, but it is very troubling.

BELL J:   I think the matter that Justice Basten was raising was the question of what the officers knew or ought to have known as to the risk of ongoing abuse at the time in circumstances in which one sees comprehensive reports with no reference to a report of further abuse or the like.  As I understand, his Honour considered that the plaintiffs might have failed at that point too.

MR MORRISON:   And his Honour did ‑ ‑ ‑

BELL J:   That is distinct from the factual finding that in fact abuse continued.

MR MORRISON:   Yes.  What might be relevant in that regard is what appears at 670 in Justice Ward’s comments.  Her Honour had the opportunity to read Justice Basten’s judgment and respond in respect of some aspects of it, and she said, towards the foot of the page, paragraph 371:

Finally, without wishing to revisit matters discussed earlier in these reasons, in my opinion the question posed by Basten JA at [132] must be answered (by reference to Ms Quinn’s own reports in September 1983) by saying that the Departmental officers (Ms Quinn and anyone to whom that report was sent) did indeed know that there was a serious risk of ongoing abuse.  That was the very basis for the level of concern that was being expressed in the reports to the Children’s Court after the interview with the step‑father, and Ms Quinn was certainly aware that there was some kind of inappropriate conduct at least between one of the children and the step‑father -

I might add one of the reasons why the majority in the Court of Appeal overturned Justice Basten’s view on whether or not the abuse was continuing was that there was some evidence which the trial judge had overlooked and had said did not exist when it did, of earlier complaint to a psychiatrist in relation to groping and abuse of DC.

BELL J:   That was the evidence that was in fact deployed by the defendant as a challenge to the credibility of aspects of DC’s evidence.

MR MORRISON:   In a sense it was because it was being put to her, “He only groped you”, because they were challenging whether it was anything more serious than groping.

BELL J:   They were pointing to an inconsistency.

MR MORRISON:   They were pointing to an inconsistency, but what they were also putting was that a form of abuse was occurring, albeit lesser abuse than was being alleged.

BELL J:   They were putting a prior inconsistent statement.

MR MORRISON:   Yes, but his Honour misdirected himself in relation to that statement, which was why the majority felt that it was open to them to review the decision on whether or not abuse had continued, and that is what led to the change of the one element that we complained about in the first‑instance judgment.

KIEFEL CJ:   Where are we then in relation to your outline of argument?

MR MORRISON:   Can I just say something very briefly about control and coherence?  Those issues we have addressed in our written submissions and we rely upon what we have put there, but they were very carefully considered by Justice Campbell and there is consideration by Justice Ward in relation to them and we have given the reasoning for that.

GAGELER J:   Could I just ask a question?  It may be another question for Mr Williams rather than for you, but the scope of the duty of care that was conceded is very vague in my mind.  Do we see it crystallised somewhere in the judgment or in the pleading?  Ordinarily a duty of care is framed as a duty to someone in respect of an identified risk of harm.  Do we see it put in those terms somewhere?

MR MORRISON:   It is not very clearly put.  Justice Ward summed it up referring to the transcript in the Court of Appeal where the admissions were made.  That transcript unfortunately has not been reproduced for your Honours, but I will just find her Honour’s reference to that. 

GAGELER J:   It is also referred to in the earlier Court of Appeal decision – [2010] NSWCA 15 at paragraphs 48 and 50 but it is no clearer there.

MR MORRISON:   No, it is no clearer, and the passage that I was referring to a moment ago appears at 669 in paragraph 367, and what her Honour Justice Ward said there is:

In oral submissions on the appeal, Senior Counsel for the respondent did not suggest that s 148B(5) had not been enlivened.  Rather, the submission was that the obligation or duty under s 148B(5) was a duty to consider what is appropriate (Senior Counsel accepting that in so considering there was a duty to exercise reasonable care).

GAGELER J:   To avoid what harm?

MR MORRISON:   Unspecified, but presumably, given that it is the Child Welfare Act, harm to the children.

GAGELER J:   So a duty of care to the children to ‑ ‑ ‑

MR MORRISON:   Exercise reasonable care to avoid further harm to them.

GAGELER J:   Which could only be harm from the perpetrator.

MR MORRISON:   Yes.  They were not in any other danger from any other source it was never suggested.

GAGELER J:   And for some reason that conceded duty is said to pull up short of reporting to the police.  That seems to be the way it is put.

MR MORRISON:   That is what is said, and the ultimate answer to that is that is the factual question which was determined against the appellant at first instance and not disturbed in the Court of Appeal and not a matter of principle for this Court and not a matter really for special leave, because those questions of control and coherence are antecedent, we would say, to the duty and the scope of the duty.

GAGELER J:    I think the problem I am having is that, if the duty is conceded to go that far, how is it coherent to say does it go the extra step?  That is not really a question for you; that is a question for Mr Williams.

MR MORRISON:   Yes, and her Honour concludes that:

The respondent should in my opinion be bound by the manner in which it contested the proceedings –

the respondent being the appellant here.

KIEFEL CJ:   Her Honour at the foot of page 669, paragraph 368 said that the position of the State at trial was:

that the abuse had in fact been reported -

I suppose that was the inference they said should have been drawn from what Mr Frost and others said was the usual practice.

MR MORRISON:   Yes, and the finding that it was not reported in circumstances where the appellant had vigorously submitted that it was reported leads to the inference that the appellant’s officers believed it should have been reported.  Indeed, Mr Maguire and Mr Frost said as much really in their evidence, that a case of this sort should have been reported.  That is, at the end of the day, what you come down to.

GORDON J:   Mr Morrison, can I ask you two questions arising out of Justice Gageler’s question about the content and scope of the duty.  At page 644, paragraph 276, I put this to Mr Williams – Justice Ward described:

the content of that duty as a duty in the exercise of the statutory powers under the Child Welfare Act so as to take all reasonable steps in the circumstances of the appellant’s case -

Is that, in effect, the formulation that was put to her by you and/or the State?  The reason I ask is that it is a duty put in terms not as, as I understood your answer to Justice Gageler, a duty to children but a duty owed by the Department to the children.  So it identifies who it is that owes the duty.

MR MORRISON:   Well, it is a duty in respect of the children.  I cannot recall how the argument was put or the precise words that were used, but it was certainly clearly put that the Child Welfare Act was there for the benefit of the children, to protect children at risk and the risk in this case was the risk of further abuse from the stepfather and it was that that called for action.

In this case increasingly it was obvious the Children’s Court was not going to be effective and what other alternative was there in circumstances where the stepfather was clearly capable of very serious physical as well as sexual abuse and we have set out in our written submissions the evidence in relation to that.

KIEFEL CJ:   At least up until the time of the hearing in the Court of Appeal was the matter conducted upon the basis that the Child Welfare Act contained special powers given to the Department but that the question of what duty was owed was at large, that is to say that the Child Welfare Act was somewhere where you could find particular powers but that the duty was not to be defined by reference to it?

MR MORRISON:   The duty is not clearly articulated in the Child Welfare Act; that is so.

KIEFEL CJ:   But the parties conducted the matter really on the basis that the Child Welfare Act did not really confine the duty; it was just the source of particular powers.  Is that how it was conducted at first instance?

MR MORRISON:   I think it is fair to say that that was generally how it was conducted, that it empowered.  It did not specify how the power was to be exercised.

KIEFEL CJ:   And those powers did not – it was not argued that those powers determined the scope or content of the duty?

MR MORRISON:   No.  The argument that is ‑ ‑ ‑

KIEFEL CJ:   It was not pleaded in that way.

MR MORRISON:   It was not run in that way and as I understand the appellant’s argument, in their written submissions certainly, it was that the powers gave rise to a discretion; you should not tell a statutory body how a discretion is to be exercised.  We have a response to that and I might, if I may, just very briefly draw attention to that.  My learned friend referred earlier to the decision in Pyrenees Shire Council v Day. Could I take your Honours very quickly to that decision and give your Honours three short quotes. The first is at paragraph 23 in the Chief Justice’s decision.

KIEFEL CJ:   I am sorry; it was paragraph?

MR MORRISON:   Paragraph 23.  The relevant sentence is where his Honour said:

But the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it.

We raise that in response to the suggestion which was originally being made that they had no obligation to go beyond considering.

GAGELER J:   Well, section 43A of the Civil Liability Act is drafted on the assumption that that proposition is correct.

MR MORRISON:   Yes, indeed, very much so.  Justice McHugh said much the same thing at paragraph 110.  His Honour said there:

To hold that the existence of the power can give rise to a common law duty to take reasonable care to exercise it is therefore not inconsistent with the existence of the discretion.

GAGELER J:   The primary judge in the present case, and also I think Justice Mason in the early case of TC, placed some emphasis on section 158 of this Act.

MR MORRISON:   Yes.

GAGELER J:   Do you ‑ ‑ ‑

MR MORRISON:   We relied on it in our written submissions and we continue to rely on it simply because it envisaged a civil action for damages.  It said that an action would not lie unless they behaved negligently.  It left open an action in negligence.

GAGELER J:   It is suggestive of the compatibility of a duty to take reasonable care with the exercise of this statutory power.

MR MORRISON:   Indeed, it is.  Justice Gummow said much the same thing in Pyrenees at paragraph 124 where his Honour referred to Sutherland Shire Council v Heyman and said:

that a public authority is the repository of a statutory discretion does not prevent the application of the ordinary principles of the law of negligence.

Now, the suggestion that a discretion means that an action does not lie simply is inconsistent with what this Court has said on numerous occasions; it is also inconsistent with the submission that has been made orally this morning that in some cases it could be envisaged that it would be negligent not to report to police.  The only argument that has been put is that this was not such a case.

The other authorities that were referred to – I will just say something very briefly about them, if I may.  Stuart v Kirkland‑Veenstra was a case where the power never existed because until the police officers formed the opinion that the person was of unsound mind act, they had no capacity to take any action, so there was no discretion to be exercised.

Michael v Chief Constable deals with exceptions even in respect of police where there is a public policy issue, and that is in paragraphs 99 and 100 but particularly at paragraph 100.  It does not suggest that there is a universal rule that even in respect of the police the exercise of a discretion cannot be reviewed in some circumstances where there has been an assumption of responsibility.  Once you assume responsibility, the position is different.  That is what paragraph 100 in Michael says. 

Crimmins, the same; in the passage my learned friend correctly referred to this morning, that was not an employment case, although the asbestosis occurred in the course of employment, the body being sued was not the employer, but there was control and sufficient control in those circumstances to give rise to a duty of care.  So, yes, control and coherence give rise to the duty of care but in this case duty of care is conceded.  Common law duty of care is conceded. 

So, whilst we have shown that to the satisfaction of the trial judge no authority acting reasonably could properly consider the failure to be a reasonable exercise of the powers conferred, in this case we only had to show that it was not reasonable in the particular circumstances to report.  Those circumstances included not just the original decision in April but the progressive decisions as the stepfather continued repeatedly to get access to the girls over more than another 12 months.

GORDON J:   Is that right on the finding that the time to report was by no later than the 28th?  Does that sit with that finding?  Do you seek to go beyond that finding by that submission?

MR MORRISON:   Yes, your Honour, and we always have, and his Honour recognised ‑ ‑ ‑

GORDON J:   Is that by way of notice of contention?

MR MORRISON:   We do not need to do that, your Honour ‑ ‑ ‑

GORDON J:   Right.

MR MORRISON:    ‑ ‑ ‑ for this reason.  His Honour when he has made that finding said it has been clearly submitted that it was a continuing duty.

GORDON J:   Conceded to be a continuing duty or submitted ‑ ‑ ‑

MR MORRISON:   No, he said that it had been argued by us ‑ ‑ ‑

GORDON J:   I see.

MR MORRISON:    ‑ ‑ ‑ to be a continuing duty.  I do not have to decide that because I find that at the very first step there should have been reporting.  There is reference to the continuing duty in the Court of Appeal as well, but it is not dealt with in clear terms.  It has never been in issue that we have always argued, and consistently argued that there was a continuing duty to make that decision and that the decision‑maker – or decision‑makers, whichever it was – should have, as time went on, reconsidered the matter.  Even when he makes admissions there is no indication that it is under consideration.  Even when he is making threats against TB there is no consideration.  It seems extraordinary but there is just no reference to it anywhere.

BELL J:   But there was some evidence, I thought, was there not, about the fact that the interview with the stepfather itself suggested to the mind of the officers of Youth and Community Services that police action would not be taken.  Was there not some evidence along those lines?

MR MORRISON:   Ms Quinn suggested that the fact that he was interviewed suggested that no police action was contemplated, but it was then squarely put to her that it was equally consistent with it never having been reported to police.

BELL J:   I see.

MR MORRISON:   And therefore charges were not in contemplation, and the trial judge found that that was so; that is, he was not prepared to draw an inference from the fact that she spoke to the perpetrator one way or the other.  It was just as consistent with the one as the other.

BELL J:   The continuing duty that you say you have maintained all along surely is not the pleaded continuing duty that would extend right through until 2001, when the matter ‑ ‑ ‑

MR MORRISON:   No, and the case as it was run was until the girls left home in 1984.

BELL J:   I see.  Yes.

MR MORRISON:   That was the case that was run, because after that there was no more abuse and there was no more issue.  2001 was when TB, with DC’s support, had charges laid against the stepfather.I do not know quite why it was pleaded that way but the case as it was run was clear enough.  The two girls left the home finally on different dates in 1984, and that was the end of the abuse.  Until then the evidence was contained, even up to the last report, the 1984 report, of the district officer, that the stepfather was still getting access to them on a regular basis.

We would simply say that this has come down ultimately to a factual case, the factual findings were made in our favour, and it is no longer a matter which is appropriate for this Court, particularly given that special leave was not sought in relation to the factual issues.  Ultimately, it must have been evident to YACS that the Children’s Court could not control the stepfather.  The only action which could control him was reporting to the police.

BELL J:   Why would one draw that inference when the range of orders that were available to the Children’s Court Magistrate, under I think it is section 82, would have included placement of the children in care.

MR MORRISON:   That was so, except the children did not want to be in care.  They wanted to be in their home and why should not they have been able to be.  The mother wanted them at home but the mother had clearly breached repeated orders from the magistrate that she was not to give the stepfather access.

BELL J:   Accepting all of that, the point remains that there was in the armoury of the Children’s Court a range of orders available at the discretion of the Children’s Court Magistrate to secure the safety of the children.  It just seems to me a difficult inference to draw, that the only solution was ‑ ‑ ‑

MR MORRISON:   Well, the only sensible solution because otherwise what you are doing is punishing the victims to protect the stepfather from any interference with his activities.

BELL J:   Or to protect the children from the criminal justice system, as it was in 1983.

MR MORRISON:   But again, the finding of Justice Campbell in the passage I read to your Honours suggested that TB was robust and capable and indeed her conduct in reporting it after the original acts of violence, speaks volumes about that and there was no acceptable evidence to the

contrary.  The only thing that is relied upon is evidence which was rejected by the trial judge. May it please the Court.

KIEFEL CJ:   Thank you, Mr Morrison. 

MR WILLIAMS:   Your Honours, to start with what perhaps may be a small point about whether the guidelines were mandated reporting or not, the guidelines use the term “may” and illustrated circumstances in which reporting would be appropriate.  Appropriate, of course, does not equal mandatory.  The primary judge did find that there was a practice that reporting was treated as mandatory but to the extent to which a distinction between the guidelines and the practice matters, the guidelines in terms did not require it.

Much has been made of the evidence led from two experts as to whether reporting would lead to charge.  That of course was on a question of causation, which is backward‑looking.  The scope of the duty to report and that is the question of law that we raise in this Court, not the factual question - the scope of the duty to report is prospective; it is to be considered prospectively. 

In that exercise, Messrs Maguire and Frost, if they were the relevant persons, did not have the assistance of Mr Cowdery or Mr Terracini at their elbow when making decisions as to what would be likely to occur and in one sense, the failure apparent in our friend’s submissions, strictly to separate the two considerations, the backward‑looking exercise of causation and the findings made on that and the forward‑looking questions about duty, may be seen in some senses to underlie the errors below and this is the point made by Justice Basten, simply to give the Court a reference, at pages 583 to 584 and especially at paragraph 86.

Our friends rely on misprision of felony.  General duties under misprision have no application to officers who were performing duties under section 148B(5) who had a statutory function to perform.  The magistrate, going onto robustness, in volume 1 of the book at page 339, expressed his intention at 339, line 21:

to take every possible step to ensure the protection of those children –

and there is no reason to doubt the sincerity of that expression of opinion – this, I think, was on 9 September – or to undermine what the Department might have taken from it.  His conclusion at point 58 on that page was that he would:

allow the children home on basis that he does not attend the home at all.

That is what the magistrate charged with protecting the children thought was the appropriate course.  Your Honour Justice Gageler asked about the scope of the admission.  The best evidence of that is at pages 451 to 452 of the book.  It is in the judgment of Justice Basten reporting the concession from Justice Sackville in the court below – 451 to 452.  There is a reference to an observation of Justice Mason in TC.  His Honour expressed the view that:

it was arguable that the State, through YACS, owed a duty to exercise reasonable care ‑ ‑ ‑

GORDON J:   Sorry, where is this, Mr Williams?

MR WILLIAMS:   I am sorry, foot of 451 in volume 2 in paragraph 14 of Justice Basten, the passage that goes over the page.  I am sorry, Justice Campbell, I am sorry.

KIEFEL CJ:   Referring to Justice Sackville in the earlier decision.

MR WILLIAMS:   That is so. 

GAGELER J:   He seems to be pretty unclear about what the concession was but at line 49 the Department seemed to accept ‑ ‑ ‑

MR WILLIAMS:   Well, we take the concession to have been that the Department owed a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs.

GAGELER J:   Well, let us just have a look at both limbs.  What are we talking about?

MR WILLIAMS:   Exercise reasonable care in determining whether or not the officer is satisfied.

GAGELER J:   What are the two limbs being referred to – (a) and (b)?

MR WILLIAMS:   Yes.

GAGELER J:   The whole of (b)?

MR WILLIAMS:   Yes.

GAGELER J:   Including “which may include reporting those matters to a constable of police”?

MR WILLIAMS:   Yes, reasonable care in the exercise of the formation of the view and implementation of the conclusion as to such action as he believes appropriate.

GAGELER J:   Which can include reporting to police?

MR WILLIAMS:   Yes, but that does not involve a concession that the duty goes to require reporting to police ‑ ‑ ‑

GAGELER J:   Acting reasonably in the circumstances – and in fact if you go further and accept that the only reasonable course in the circumstances was to report to police - if we assume that to be the case, why is that not a breach of the duty as conceded?

MR WILLIAMS:   Because the duty only goes so far as to reasonable care in the exercise ‑ ‑ ‑

GAGELER J:    All right.  Could we just have a look at page 644, paragraph 276, her Honour’s second sentence – this is Justice Ward:

I would describe the content of that duty –

How is your conceded duty different in content from her Honour’s description?

MR WILLIAMS:   To begin with, and perhaps critically, all reasonable steps.

GAGELER J:   Perhaps you could qualify it or edit it in some way to make it clear what you would say that you would use.

MR WILLIAMS:   In terms of the concession that has been made, we could not be more precise than that which is expressed at 451 to 452, but certainly much of our focus is upon the word “all”.  Once one says “all reasonable steps”, one is out of the realm of Stuart v Kirkland-Veenstra, a recognition that where the power is nonetheless triggered that the police officer may nonetheless decide to take no action.

GORDON J:   I think that is why I put to you this morning in relation to this very paragraph and this suggestion that if you take the “all” out, which you take issue with, is it no more than to take steps that were reasonable in the circumstances?

MR WILLIAMS:   I hope that I acceded to that suggestion that your Honour put this morning.  My recollection is that I did.

GORDON J:    So when you look at that passage that Justice Gageler is taking you to again, other than “take all reasonable steps”, how else is that different from the duty that is owed?  We are trying to put meat on the bones here.

MR WILLIAMS:   Yes.  Taking out the word “all” – and your Honours will appreciate that has been a focus of our attack ‑ ‑ ‑

GORDON J:   Yes.  Is that it?

MR WILLIAMS:   That may be it.  Yes, Mr Harvey correctly calls attention to the statutory language:  take such steps as the person believes appropriate.

GAGELER J:   Which may include reporting those matters to a constable of police - I am just using the statutory language.

MR WILLIAMS:   Yes.  We do not cavil with that, but of course it is dependent on forming the belief or opinion that a report to the police is part of the appropriate action, and until that belief is formed there is no duty to report.

KIEFEL CJ:   But, as I understand what you are saying, the conceded duty is to take reasonable care in the exercise of the statutory powers under the Child Welfare Act, including the power to report, having regard to the circumstances of the appellant’s case.

MR WILLIAMS:   Yes.  Your Honour the Chief Justice asked my friends whether the parties conducted the case on the basis that the power was not confined.  Could I take the Court to volume 1 of the appeal book, page 46, paragraph 52.  This is in response to the pleaded duty against the State to take all ‑ ‑ ‑

GAGELER J:   When read with 158?  Is that a concession that 148B needs to be exercised honestly and reasonably?

MR WILLIAMS:   That may be open to that reading, yes, but certainly 148B of the Act is invoked as a limiting device.

GAGELER J:   Thank you.

MR WILLIAMS:   Your Honour Justice Bell’s question as to Ms Quinn’s evidence as to the interviewing of the perpetrator about police action, could

I give the Court a reference to appeal book 1, page 240, line 35 to 241, line 10.  Unless there are matters your Honours wish to raise, those are our submissions.

KIEFEL CJ:   Thank you. 

I just have one note for the transcript, in discussion earlier with counsel, there was reference made to the first ground of appeal as, I am sorry, the second ground of appeal as ground 2 and the first ground as ground 1.  In fact, they appear in the notices of appeal as they usually do, as respectively grounds 2 and 3. 

The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise until 10.00 am.

AT 3.58 PM MATTER WAS ADJOURNED