Williams (a pseudonym) v State of Victoria
[2022] VSC 305
•8 June 2022
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2020 02815
BETWEEN:
| DEBRA WILLIAMS (a pseudonym) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
---
| JUDGE | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 June 2022 |
DATE OF RULING: | 8 June 2022 |
CASE MAY BE CITED AS: | Williams (a pseudonym) v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2022] VSC 305 |
---
PRACTICE AND PROCEDURE – Application for summary dismissal – Application disallowed - Whether the plaintiff’s claim had no prospects of success - Sections 63 and 64 of Civil Procedure Act 2010 (Vic) – Sections 72, 73, and 74 of Victoria Police Act 2013 (Vic) - Smith v State of Victoria (2018) 56 VR 332.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett, QC with Ms Y Al-Azzawi | Robinson Gill |
| For the Defendant | Ms R Ellyard | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Statement of Claim and Defence.................................................................................................... 1
Evidence............................................................................................................................................... 4
Applicable principles........................................................................................................................ 5
Analysis................................................................................................................................................ 8
HER HONOUR
The plaintiff says that she was abused and sexually assaulted by her former domestic partner, Leading Senior Constable Nelson Powell (a pseudonym). Powell was a police officer at all relevant times. The plaintiff says that the defendant, the State of Victoria, is liable for his conduct. In this proceeding, the plaintiff sues the defendant for loss and damage alleged to have arisen by injury from Powell. The defendant says the proceeding should be summarily dismissed. It says that Powell’s alleged conduct is not capable of being categorised as a ‘police tort’ within the meaning of s 72 of the Victoria Police Act 2013 (Vic) (‘VPA’) and therefore it cannot be liable for Powell’s conduct pursuant to s 74 of the VPA.
For the reasons outlined below, the application by the defendant to summarily dismiss the proceeding is disallowed.
Statement of Claim and Defence
Powell was appointed in accordance with the VPA and/or the Police Regulation Act 1958 (Vic).[1]
[1]Statement of claim filed 18 October 2021 (‘Statement of Claim’), [2]; Defence filed 17 December 2021 (‘Defence’), [2].
Pursuant to s 74 of the VPA, the defendant is liable for a ‘police tort’.[2]
[2]Statement of Claim, [1]; Defence, [1].
The plaintiff pleads that between January 2013 and June 2016, Powell deliberately misused his position and powers as a police officer to initiate and carry on a sexual relationship with the plaintiff.[3] The plaintiff pleads the following.
[3]Statement of Claim filed 18 October 2021, [3].
(a) The plaintiff’s ex-husband had perpetrated family violence against the plaintiff. The plaintiff was encouraged by a neighbour to introduce herself to Leading Senior Constable Powell as he was a police officer.
(b) Leading Senior Constable Powell first met the plaintiff in approximately January 2013 when the plaintiff introduced herself to Leading Senior Constable Powell on the recommendation of her neighbour.
(c) On or about 28 January 2013, the plaintiff attended Leading Senior Constable Powell’s home seeking assistance following a family violence incident involving the plaintiff’s father-in-law. The plaintiff and Leading Senior Constable Powell exchanged phone numbers so that the plaintiff could contact him if she required help.
(d) Later that day, Leading Senior Constable Powell sent text messages to the plaintiff.
(e) Later that day while travelling on Springvale Road, Nunawading, Leading Senior Constable Powell intercepted the plaintiff, who was driving, and activated the sirens on his marked police vehicle to indicate to her that she should pull her vehicle over. The plaintiff pulled over. Leading Senior Constable Powell showed the police vehicle to the plaintiff’s son.
(f) Thereafter, Leading Senior Constable Powell initiated an intimate relationship with the plaintiff, including by sending her a text message complimenting her appearance.
(g)In the Period, Leading Senior Constable Powell engaged in sexual activities with the plaintiff while on duty.
(h) In the Period, Leading Senior Constable Powell committed acts of family violence against the plaintiff including physical assaults, verbal abuse and rape (the Abuse).
(i) In the period, Leading Senior Constable Powell sought to persuade the plaintiff that she would be harmed if she left the relationship and/or would not be believed if she reported the family violence. Leading Senior Constable Powell said to the plaintiff that:
(i) he would kill the plaintiff if she left him or didn’t take him back;
(ii)he would be able to get away with killing the plaintiff, that he would make it look like an accident, and that nobody would suspect him as he was a police officer;
(iii) he was “the law”, it was the plaintiff’s word against his, that nobody would believe a babbling dumb girl like the plaintiff, that the courts would listen to him and not the plaintiff, and that the courts would not discriminate against him; and
(iv)previous partners had tried to take out intervention orders against him without success, that the plaintiff would also be unsuccessful if she tried to obtain an intervention order, and that the plaintiff should not even try.[4]
[4]Ibid, [3(a)-(i)].
The plaintiff pleads that Powell knew she was vulnerable, by reason of her experiencing family violence, and exploited her vulnerability by misusing his position and powers as a police officer to initiate and carry on a sexual relationship with her.[5] The defendant does not admit these allegations.[6]
[5]Ibid, [4].
[6]Defence, [3]-[4].
In May 2016, the plaintiff reported Powell’s conduct to Victoria Police. In June 2016, Powell was arrested and charged with criminal offences. He was committed to stand trial in about March 2017, but the charges were subsequently discontinued by the Director of Public Prosecutions.[7]
[7]Statement of Claim, [5]-[6], Defence, [5]-[8].
Following an investigation by Taskforce Salus in relation to the abuse, Victoria Police found the allegation of disgraceful conduct was substantiated. Victoria Police commenced disciplinary proceedings against Powell. He resigned as a police officer with Victoria Police before the proceedings were concluded.[8]
[8]Statement of Claim, [7]-[8], Defence, [5]-[8].
The plaintiff pleads that the conduct of Powell constitutes a police tort, for which the defendant is liable pursuant to s 74 of the VPA.[9] The defendant denies this allegation on the grounds that Powell’s conduct does not, and cannot, constitute a police tort as defined in s 72 of the VPA.[10]
[9]Statement of Claim, [14].
[10]Defence, [14]. The defendant also foreshadowed this application in its defence.
The plaintiff pleads she has suffered harm, loss, and psychiatric injury as a result of Powell’s conduct.[11] She seeks aggravated and exemplary damages.[12] Her particulars of aggravation include an allegation that Powell deliberately misused his position and powers as a police officer. Her particulars of exemplary damages include an allegation that Victoria Police permitted Powell to continue employment as a police officer, despite previous complaints of family violence. The defendant does not admit these allegations.[13]
[11]Statement of Claim, [9], [13].
[12]Ibid, [15], [16].
[13]Defence, [9]-[13], [15]-[16].
Evidence
The defendant relies on the affidavit of its solicitor Sylvia Cecchin affirmed 31 January 2022 (‘Cecchin affidavit’).
The Cecchin affidavit exhibits the plaintiff’s statements made to Victoria Police on 31 May 2016, 7 June 2016, 10 June 2016, 11 August 2016, and 14 September 2016.[14] Those statements include the following information, amongst other things.
[14]Cecchin affidavit, [10].
The plaintiff describes the circumstances in which she met Powell.
… I had been going through a really tough time with my ex-husband and my neighbour suggested that I go and speak with the guy over the road who was [Powell]. My neighbour explained [Powell] was a police officer and that I should go and speak to him if I felt scared or threatened by my ex-husband. My ex-husband was violent and aggressive and I was really struggling with life at that time.
I took the advice of my neighbour and went and introduced myself to him. [Powell] was out the front of his house which was directly across from my house. We started talking, he was friendly and approachable. Within the first two or three weeks of speaking with [Powell] I told him all about my issues with my ex-husband which included an intervention order, me being assaulted by my ex-husband and issues and stresses I had about supporting my son. [Powell] was aware that I was in [sic] a vulnerable person at that time in my life.[15]
[15]Statement of Debra Williams (pseudonym) dated 31 May 2016 contained in Exhibit “SC-1” to the Cecchin affidavit (‘Williams statement’), [5]-[6].
On a public holiday in January, the plaintiff knocked on the door of Powell’s house to get his phone number. Powell opened the door in his underwear. They exchanged phone numbers. The plaintiff went to the beach. Later that evening, when the plaintiff was driving home from the beach, she was exchanging text messages with Powell. He was working, and intercepted her car, pulling it over.[16]
[16]Statement of Debra Williams (pseudonym) dated 11 August 2016 contained in Exhibit “SC-1” to the Cecchin affidavit, [10].
The relationship between the plaintiff and Powell turned from friendly to sexual within about four weeks. It began as “fun and loving”, and Powell moved into the plaintiff’s house not long afterwards.[17] A few months later, Powell began abusing the plaintiff. The abuse included constant and relentless sexual assaults of the plaintiff. The physical and sexual abuse described by the plaintiff occurred in her home.
[17]Statement of Debra Williams (pseudonym) dated 31 May 2016 contained in Exhibit “SC-1” to the Cecchin affidavit, [7].
The plaintiff remained in a relationship with Powell for four years and they have a child together.
Ms Cecchin deposes that although Powell resigned from Victoria Police, and so the disciplinary charges could not proceed to hearing and formal determination, Victoria Police were satisfied that the disciplinary offence of ‘disgraceful conduct’, pursuant to s 125(1)(j) of the VPA was substantiated against him. At the hearing of this application, the Court was informed that part of the substantiated disgraceful conduct related to Powell’s conduct towards the plaintiff and the other part related to another issue.
Applicable principles
Section 63 of the Civil Procedure Act 2010 (‘CPA’) provides that, subject to s 64, a Court may give summary judgment if a case has no real prospect of success.
Section 72 of the VPA is as follows.
What is a police tort?
(1) For the purposes of this Act, a police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer’s duties.
(2) For the purposes of subsection (1), a tort includes—
(a) detrimental action (within the meaning of the Public Interest Disclosures Act 2012) taken by a police officer or protective services officer in reprisal for a disclosure to which Part 6 of that Act applies; and
Note
The disclosures to which Part 6 of the Public Interest Disclosures Act 2012 applies include a complaint by a police officer or protective services officer about the conduct of another police officer or protective services officer made under section 167(3).
(b) any other prescribed action or conduct.
(3) To avoid doubt, subsection (2) does not limit what is a tort for the purposes of subsection (1).
(4) For the purposes of subsection (1), it is irrelevant whether the tort is committed by the police officer or protective services officer alone or jointly or severally with any other person.
Section 73 of the VPA is as follows:
What is a police tort claim?
(1) For the purposes of this Act, a police tort claim is a claim for damages or other relief in respect of an alleged police tort.
(2) A “police tort claim” includes—
(a) an action for damages under Part III of the Wrongs Act 1958 in respect of an alleged police tort; and
(b)a counterclaim for damages or other relief in respect of an alleged police tort committed by a police officer or protective services officer that is made by a person in a legal proceeding brought by the officer against that person; and
(c)any other prescribed action, claim or proceeding in respect of an alleged police tort.
(3) To avoid doubt, subsection (2) does not limit what is a police tort claim.
Section 74 of the VPA is as follows.
Liability of the State for police torts
(1) Subject to this section, the State is liable for a police tort.
(2) Subject to subsection (5), the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3) If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a) is not liable to any person for the police tort; and
(b) is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.
(4) Subject to subsection (5), the State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
(5) Subsections (2) and (4) do not apply to a claim brought in reliance on Part XIII of the Wrongs Act 1958.
Note
See Part II of the Crown Proceedings Act 1958 for the liability of the State for torts committed by servants of the Crown. The public service of Victoria consists of persons employed under Part 3 of the Public Administration Act 2004—see section 9 of that Act. Victoria Police employees (including police custody officers) are employed under Part 3 of the Public Administration Act 2004.
There is no authority identified by either party interpreting s 72 of the VPA. The defendant referred to the Explanatory Memorandum.[18] It includes the following in respect of s 72 of the VPA:
The kind of conduct
A police tort must arise from conduct in the performance or purported performance of the officer’s duties.
The test is not intended to include conduct performed in a personal capacity, divorced from the duties of the officer.
[18]Explanatory Memorandum, Victoria Police Bill 2013 (Vic).
In another context, J Dixon J considered whether to summarily dismiss alleged police tort claims in Smith v State of Victoria.[19] I adopt the following principles given by J Dixon J:
In Kuhl v Zurich Finance Services Australia Ltd, French CJ and Gummow J emphasised that when determining the existence of a duty of care, and its scope and content ‘those questions are determined by considering reasonable foreseeability and the ”salient features” of the relationship between the plaintiff and defendant’.
Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer does owe a duty of care in the terms identified in the amended statement of claim must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible. I accept that there are many cases in which it has been held that police and the police force as a whole do not owe a duty of care to a plaintiff in the particular circumstances of those cases. In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.[20]
[19](2018) 56 VR 332 (‘Smith’).
[20]Ibid, [168], [170] (citation omitted).
J Dixon J disallowed the summary dismissal application finding:
Ultimately, the task involved in the resolution of this proceeding is fact rich and fact intensive. The defendant has not persuaded me that no duty of care could arise on the assumed facts. Rather, I am persuaded that the issue must be determined once the facts have been established at trial.
… the salient features … are fact sensitive, capable of being found on the assumed facts, if proved at trial.[21]
[21]Ibid, [171], [173].
I accept that the context in Smith was different as it was not alleged that the perpetrator of family violence was a police officer. However, the general principles cited above are applicable.
The defendant referred to a number of authorities from the United Kingdom.[22] However, as the plaintiff submits, the legislation there is different to the VPA, focusing on whether there is vicarious liability.[23] Moreover, none of those cases were determined on a summary basis.
[22]Weir v Chief Constable of Merseyside Police [2003] EWCA Civ 111; N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB); Makanjuola v Commissioner of the Police of the Metropolis [1989] NLJR 468.
[23]See for instance s 88(1) of the Police Act 1996 cited in N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB), [5].
It is unnecessary to reiterate all the written and oral submissions made by the parties. Key issues are analysed below.
Analysis
I will disallow the application for summary dismissal. I am not satisfied that the proceeding has no real prospect of success for the following reasons.
Firstly, the Court does not have all the relevant facts before it. At the heart of the defendant’s submission is the premise that the plaintiff must be bound by the facts, and only the facts, in her statements given to Victoria Police (and exhibited to the Cecchin affidavit). That must be firmly rejected. The statements given to Victoria Police were not made in the context of a tortious claim. There is no basis to limit the plaintiff’s evidence to those statements. Moreover, it is on the cards that Powell may give evidence. Plainly, that would be relevant. He may be called or subpoenaed by either party. The determination of the facts here is crucial to establishing whether Powell committed a ‘police tort’, that is, a tort in the performance or purported performance of his duties.
I should add that Powell is likely to become a party to this proceeding for the following reasons. Section 74(2) of the VPA provides the defendant is not liable for a police tort if it establishes the conduct giving rise to the police tort was serious and wilful misconduct by the police officer. The defendant has foreshadowed amending its defence to rely upon s 74(2) of the VPA if this application is unsuccessful. Section 75(2) of the VPA provides that if the defendant relies upon s 74(2) or pleads that if the alleged tort, if proven, is not a police tort, then the plaintiff may seek to join the police officer (here, Powell).
Secondly, and relatedly, there is some evidence that Powell commenced the relationship with the plaintiff in the purported performance of his duties. As discussed above, he was in a police vehicle when he intercepted the plaintiff in her car on the day they exchanged telephone numbers. Moreover, the plaintiff made contact with him and sought his assistance regarding concerns about violence from her previous partner, after being informed by a neighbour that Powell was a neighbour and also a police officer.
Thirdly, and relatedly, there is no evidence before me concerning the investigation resulting in the finding of disgraceful conduct. Nor is the evidence in the police brief regarding the charges against Powell, and any statements by Powell (if any) before me. It is on the cards that such evidence would be relevant. I make no finding as to whether or not such evidence is admissible.
The factual matrix ought be established at trial. The finding of whether or not there is liability will follow.
The plaintiff relied upon s 64(a) of the CPA. This need not be addressed given the findings above.
0
2
0