White v South Australia

Case [2007] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

WHITE & ORS v THE STATE OF SOUTH AUSTRALIA & ORS

[2007] SASC 75

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)

7 March 2007

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - PROCEEDINGS BY AND AGAINST THE CROWN - DISCOVERY BY AND AGAINST THE CROWN

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - PROCEEDINGS BY AND AGAINST THE CROWN - ACTIONS AGAINST THE CROWN UNDER STATE STATUTES - SOUTH AUSTRALIA

The appellants (defendants at trial) made discovery of certain documents over which “immunity from production” was claimed pursuant to s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) – the claim of immunity was challenged by the respondents (plaintiffs at trial) and upheld by a Master – a single Judge of the Supreme Court allowed an appeal against the Master’s order – the appellants appeal to the Full Court against the Judge’s order- the proceedings concern the conduct of police officers monitoring a protest at an uranium mine in South Australia and the production by the Police Complaints Authority of documents purportedly related to the protest – the appellants do not deny that the documents are in the custody power or control of the police officers named in the proceedings – the documents are also in the custody of the Crown Solicitor for South Australia – whether the claim of immunity can properly be supported by s 48(2) and s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) – the sections create secrecy requirements which prohibit the disclosure of documents of the kind sought by the respondents – the statute contemplates that only the Police Complaints Authority or the police officer in command of the Internal Investigation Branch may authorise the production of documents – consideration of s 48(4) or s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) – these sections require the disclosure of documents if it can be said that there are "special reasons" for doing so and that the interests of justice cannot be served except by an order for production – consideration of the forensic disadvantage for the respondents if the documents are not produced – "special reasons" do exist, that is reasons beyond the ordinary requirements for production, yet in all the circumstances of the case these reasons are not reasons which require the Court to order production – appeal allowed.

Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 5(1), s 13, s 14, s 22A, s 22A(2), s 22A(3), s 23, s 25(3a), s 25(5), s 25(8), s 28, s 28(3a), s 28(6), s 28(7), s 28(10), s 28(11), s 28(12), s 28(13), s 31, s 32, s 36, s 48, s 48(2), s 48(4), s 48(4)(c), s 48(7), s 48(7)(c); Crown Proceedings Act 1992 (SA) s 5(1), s 5(2); Police Act 1998 (SA) s 6,…

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AGLC
White v South Australia [2007] SASC 75
Case
[2007] SASC 75
Decision Date

CaseChat Overview and Summary

The appeal in White v South Australia was brought by the appellants, who were defendants at trial, against an order made by a single Judge of the Supreme Court of South Australia. The respondents, who were plaintiffs at trial, sought the discovery of certain documents that the appellants claimed were protected by immunity from production under s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). The Master of the Supreme Court initially upheld the claim of immunity, but the single Judge later allowed an appeal against the Master’s order. The appellants now appealed to the Full Court of the Supreme Court against the Judge’s order.

The legal issues before the court were whether s 48(2) and s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) could properly support the claim of immunity from production of the contested documents. These sections create secrecy requirements that prohibit the disclosure of documents of the kind sought by the respondents. The statute contemplates that only the Police Complaints Authority or the police officer in command of the Internal Investigation Branch may authorise the production of documents. The court also considered s 48(4) and s 48(7) of the Act, which require the disclosure of documents if there are "special reasons" for doing so and that the interests of justice cannot be served except by an order for production. The forensic disadvantage for the respondents if the documents were not produced was also considered.

The Full Court found that "special reasons" did exist for the disclosure of the documents, but in all the circumstances of the case, these reasons were not sufficient to require the Court to order production. The court held that the terms of s 48 of the Police (Complaints and Disciplinary Proceedings) Act 1985 could be relied on to prevent inspection of the contested documents. The appeal was allowed, and the order of the single Judge requiring disclosure of the contested documents was set aside. The Full Court substituted an order dismissing the appeal against the Master’s decision refusing to order production of the contested documents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For those reasons I am not persuaded that the Court should make an order under s 48(7)(c) requiring the disclosure of the contested documents. Nor would I make such an order under s 48(4).Conclusion I would allow the appeal. I would set aside the Judge’s order allowing the appeal to him and requiring disclosure of the contested documents, and the related orders made by him. I would substitute an order dismissing the appeal against the Master’s decision refusing to order production of the contested documents. DEBELLE J: The central issue in this appeal concerns the extent to which the terms of s 48 of the Police (Complaints and Disciplinary Proceedings) Act 1985 may be relied on to prevent inspection of documents produced in the course of an investigation of complaints against police officers by the Police Complaints Authority and the Internal Investigation Branch of the South Australian Police Force. The question has arisen in the course of an action between thirteen plaintiffs claiming damages against 25 police officers. The proceedings stem from a confrontation at the Beverley Uranium Mine near Arkaroola on 7, 8 and 9 May 2000. The plaintiffs allege that the defendant police officers engaged in an series of assaults and other tortious conduct, including wrongful arrest and unlawful imprisonment. It is convenient to refer to the parties as “plaintiffs” and “defendants”. The State of South Australia has been joined as a defendant pursuant to s 5 of the Crown Proceedings Act 1992. Section 5 of that Act is in these terms:(1)Subject to this Act and any other Act of the State, the Judiciary Act 1903 of the Commonwealth, and any relevant rules of court-(a) proceedings may be brought and conducted by or against the Crown in the same way as proceedings between subjects; and(b) the same substantive law is to be applied in such proceedings as in the case of proceedings between subjects.(2) Subject to the regulations, proceedings may be brought by or against the Crown-(a) in the case of the State Crown – under the name “The State of South Australia”;(b) in any other case – under the name in which the Crown could sue or be sued in the courts of its own jurisdiction.The provisions of s 65 of the Police Act 1998 transfer to the State the civil liability of a police officer for acts honestly done in the course of duty. Section 65 is in these terms:(1)A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law.(2)A liability that would, but for subsection (1), lie against a member of S.A. Police lies against the Crown.It appears that the plaintiffs have added the State as a defendant because of the terms of s 65 and because they plead in para 2 (c) of the statement of claim that the State owed a duty to the plaintiffs to ensure so far as was reasonable that the 25 defendant police officers had been properly trained and instructed in respect of the particular activities in which they engaged during the events the subject of these proceedings.Police Complaints Authority

Ratio Decidendi

Legal Principle Established

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