Taha v Shaq Industries Pty Ltd - [2012] VSC 30

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. S CI 2011 4243

ABIR TAHA	Plaintiff
v
SHAQ INDUSTRIES PTY LTD ALI HOULI STATE OF VICTORIA WESTPAC GENERAL INSURANCE LIMITED CONSTABLE MATT WALSH	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2012
DATE OF JUDGMENT:	9 February 2012
CASE MAY BE CITED AS:	Taha v Shaq Industries Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 30

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NEGLIGENCE – Duty of care – Police – Alleged duty to conduct a reasonable investigation – Alleged duty to conduct a reasonable investigation such as to prevent unlawful damage.

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

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L.E.P. Magowan	MSB Lawyers
For the First Defendant	Mr A. Morrison	Kliger Partners
For the Second Defendant	No appearance
For the Third and Fifth Defendants	Ms R. Orr	Victorian Government Solicitors Office
For the Fourth Defendant	Mr K.G.M. Howden	Minter Ellison

HIS HONOUR:

In this proceeding, Abir Taha, the plaintiff, claims various relief from five defendants in relation to the partial demolition of a house owned by her at 34 Kitchener Street, Broadmeadows. It is not necessary to describe all of the claims made against all of the defendants. The present application concerns the plaintiff’s claims against the third defendant, the State of Victoria, and the fifth defendant, Constable Matt Walsh.

In her amended statement of claim, the plaintiff makes the following allegations of fact relevant to the claims against the third and fifth defendants:

(a)The plaintiff was at all relevant times the owner of the land and house at 34 Kitchener Street.
(b)On or about 20 and 21 July 2010, the second defendant wrongfully entered 34 Kitchener Street and partially demolished the house (it appears that the second defendant was in fact engaged by the first defendant to remove asbestos from 101 Kitchener Street and 34 Stanhope Street and perform some demolition work at these premises, but mistakenly attended 34 Kitchener Street to perform the work).
(c)The fifth defendant, an officer of Victoria Police, attended 34 Kitchener Street at approximately 1.15pm on 21 July 2010 after neighbours had alerted Victoria Police by telephone that youths were causing damage to the property, including breaking glass. The fifth defendant attended 34 Kitchener Street for the purpose of making inquiries and/or conducting an investigation.
(d)When he attended the property, the fifth defendant was told by the second defendant that the second defendant had been contracted to demolish the house and was in the process of doing so. The fifth defendant requested a copy of the second defendant’s driver’s licence, but did not otherwise make any further inquiries of the second defendant or any other person or prevent the second defendant further demolishing the house.

In her amended statement of claim, the plaintiff asserts that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] VSC 30
Decision Date: 9 February 2012

CaseChat Overview and Summary

The parties to this case are Taha and Shaq Industries Pty Ltd. The nature of the dispute involves allegations of negligence by the police in their investigation of a matter, which the plaintiff claims resulted in unlawful damage to the plaintiff's property. The court hearing the matter was the Supreme Court of Queensland. The plaintiff seeks damages for the loss and damage to his property, claiming that the police failed to conduct a reasonable investigation, thereby allowing the damage to occur.

The legal issues before the court were whether the police owed a duty of care to the plaintiff, and if so, whether they breached that duty by failing to conduct a reasonable investigation that could have prevented the damage to the plaintiff's property. The court had to determine the existence of a duty of care, the scope of that duty, and whether the police's actions or omissions fell below the standard of care required.

In reaching its decision, the court considered the established principles of negligence, including the concept of a duty of care and the standard of care required. The court found that the police did not owe a duty of care to the plaintiff in the circumstances of this case. It was held that the police's role was to investigate crime generally and not to provide specific protection to any individual. The court concluded that the police's failure to conduct a reasonable investigation did not breach a duty of care owed to the plaintiff. Consequently, the plaintiff's claim for damages was dismissed.

The final orders of the court were that the defendant's application for summary judgment was granted. The plaintiff's claim against the defendant was dismissed in its entirety, with the plaintiff to pay the defendant's costs of the application.

Orders