Wilson v State of New South Wales

[2001] NSWSC 869

CITATION:	Wilson & Ors v State of New South Wales [2001] NSWSC 869 revised - 14/02/2002
FILE NUMBER(S):	SC 20218/99
HEARING DATE(S):	14/3/00;15/3/00;16/3/00;1/5/00;2/5/00;13/2/01;19/4/01
JUDGMENT DATE:	28 September 2001
PARTIES :	Anthony James Wilson & Ors v State of New South Wales
JUDGMENT OF:	O'Keefe J

LOWER COURT
JURISDICTION :

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL :	Mr M S Jacobs QC/Mr A Kostopolous - plaintiffs Mr C F Hodgson - defendant
SOLICITORS:	Greg Walsh & Co, Chester Hill - Plaintiffs I V Knight, Crown Solicitors, Sydney - Defendant
CATCHWORDS:	Torts - Negligence - Duty of Care - Welfare of children - Child abuse - Sexual abuse - Parents and grandparent - Suspected sexual abuse of children - Claims of nervous shock, distress, psychiatric injury, personal and financial loss as a result of allegations - Responsibilities of Director General and departmental officers - Allegation of negligence against Director General and departmental officers in investigating, reporting and acting on allegations - Whether duty owed to parents and grandparent by Director General and departmental officers in investigating, reporting and acting on allegations of child abuse - Police - Allegation of negligence against police in investigating, prosecuting and continuing prosecution - Whether duty owed to parents and grandparent by police in investigating, prosecuting and continuing a prosecution - Public policy
LEGISLATION CITED:	Crown Proceedings Act 1988 Children (Care and Protection) Act 1987 Crimes Act 1900 New Zealand Bill of Rights Act 1990 The Children (Care and Protection) Act 1987 Child Welfare Act 1939 Police Service Act 1990 Community Welfare Act 1971 (SA)
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Spellson v George (1992) 26 NSWLR 666 Wentworth v Rogers No. 5 (1986) 6 NSWLR 534 Agar v Hyde; Agar v Worsley (1999-2000) 201 CLR 552 Pyrenees Shire Council v Day (1998) 192 CLR 330 Crimmins v Stevedoring Industry Finance Committee (1999-2000) 200 CLR 1 X (Minors) v Bedfordshire County Council (1995) 2 AC 633 Hill v Chief Constable of West Yorkshire (1989) AC 53 Elguzouli-Daf v Commissioner of Police of the Metropolis (1995) QB 335 Caparo Industries PLC v Dickman (1990) 2 AC 605 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Giannarelli v Wraith (1988) 165 CLR 543 at 573 Rondell v Worsley (1969) 1 AC 191 Clough v Bussan (1990) 1 All ER 431 Downsview Nominees Ltd v First City Corporation Ltd (1993) AC 295 Riss v City of New York (1968) 22 NY 2d 579; 240 N.E. 2d 860 Whithair v Attorney General (1996) 2 NZLR 45 Grimwade v State of Victoria (1997) 90 A Crim R 526 Gala v Preston (1991) 172 CLR 243 at 255 Emanuele and Ors v Hedley and Ors (1997) ACTSC 13, unreported, 7 March 1997 George v Rockett (1990) 170 CLR 105 at 115-116 Elcham v Commissioner of Police and Ors [2001] NSWSC 614, 27 July 2001, unreported, at para 39 Liversidge v Anderson (1942) AC 206 at 226-228 Hillman v Black (1996) 67 SASR 470 M (A Minor) v Newham (1995) 2 AC 633 at 681 CLT v Connon (2000) Aust Tort Reports 63, 980 TC v Yanon (1999) NSWSC 31, 11 February 1999, unreported
DECISION:	1. The amended Statement of Claim of 19 April 2001 is struck out; 2. Leave is given to the plaintiffs to amend their Statement of Claim so as to claim on the causes of action of malicious prosecution and abuse of process generally in the form set out in the document filed in Court, initialled by me and dated 6 December 2001, a copy of which has been placed with the papers; 3. The costs of the application to amend so as to claim on the bases referred to in Order 2 (above) are to be the defendant's costs in the action; 4. The plaintiffs are to pay the costs of the application to strike out the Statement of Claim and the amendments thereto, up to and including the amendment effected on 19 April 2001; 5. Order under Part 52A, Rule 9 for the payment of the costs referred to in Order 4 (above) before the conclusion of the proceedings refused.

- 3 -

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

Date : 28 September 2001

20218/99 - ANTHONY JAMES WILSON & ORS v STATE OF NEW SOUTH WALES

JUDGMENT

:

INTRODUCTION

2    The State of NSW (the defendant) has applied by Notice of Motion of 6 December 1999 to stay or dismiss generally pursuant to Part 13 Rule 5 of the Rules of the Supreme Court (the Rules) an action for damages for negligence which has been instituted against it under the Crown Proceedings Act 1988 on the basis of its liability for the acts of certain police and departmental officers. In the alternative the defendant has sought an order that the pleadings be struck out pursuant to Part 15 Rule 26 of the Rules.

3    Anthony James Wilson (the First Plaintiff) is the father, and Lynette Alexis Wilson (the Second Plaintiff) is the mother, of a female child, Sarah Wilson. She born on 5 February 1976 and at times material to the allegations made by the Plaintiffs was a minor. The First and Second Plaintiff have three other children, namely James Wilson who was born on 30 October 1978, Emily Wilson who was born on 16 October 1980 and Jessica Wilson who was born on 28 December 1982. Joyce May Starky (the Third Plaintiff) is the grandmother of the four children.

4    The Plaintiffs’ Statement of Claim alleges that over a period from 15 November 1993 to 22 November 1994 Sarah Wilson was treated by a psychologist, Douglas Keir, for a psychological eating disorder known as anorexia nervosa.

5    On 19 April 1994 as a result of action taken allegedly by four named officers of the Department of Community Services (DOCS), proceedings were instituted against the First and Second Plaintiffs pursuant to the provisions of the Children (Care and Protection) Act 1987. In those proceedings it was alleged that each of the children of the First and Second Plaintiffs was in need of care and that the First and Second plaintiffs had sexually abused one or more of their four children.

6    The Statement of Claim alleges that the Plaintiff was arrested by a police officer on 19 April 1994 and charged with a number of sexual assaults contrary to the Crimes Act 1900. He was questioned and after participating in a recorded interview was granted bail.

7    It is alleged, and it is common ground, that a hearing of the proceedings instituted by DOCS took place before a Children’s Court commencing on 18 August 1994. The hearing extended over a period of 109 days during which evidence was given by the four named officers of DOCS and by five police officers as well as other witnesses, including each of the Plaintiffs. Statements made by the children of the First and Second Plaintiff were tendered. On 20 November 1995 the Magistrate dismissed the proceedings.

8    On a date which is specified in the Statement of Claim as “about late 1995/ early 1996,” but was after the Children’s Court Magistrate had dismissed the proceedings in that court, it is alleged that a decision was made by the five police officers who had given evidence in the children’s Court to proceed with the criminal charges that had already been laid against all three Plaintiffs. As a consequence the Plaintiffs were required to appear in the Local Court at the Downing Centre on various occasions extending from 12 March 1996 to 21 June 1996, on which date the Second and Third Plaintiff’s were discharged. The first Plaintiff was also discharged, except in respect of a charge that he had sexually assaulted a child Shane Starkey. On this charge he was committed for trial. However, subsequently that charge was withdrawn as the Director of Public Prosecutions declined to prosecute.

9    In their original Statement of Claim the Plaintiffs alleged DOCS owed them a duty of care “not to have referred Ms Sarah Wilson to the police for the purpose of investigating charges of sexual abuse against one or more or all of the Plaintiffs where the only allegations made against any of the Plaintiffs followed from and were based on recovered memories resulting from the application of the repressed memory technique when the aforesaid Keir knew or should have known that such recovered memories were unreliable and the technique employed was known to be unreliable reliable (sic) and suspect.”

10    A further allegation was made that the named police officers owed the Plaintiffs a duty of care “to have conducted a proper and thorough investigation of the facts”, to carry out their investigations “in accordance with proper police practice and procedure” and “continually to review the evidence … and to terminate the prosecutions at the earliest possible date when it became apparent that the evidence was insufficient and/or unreliable and/or suspect.”

11    The Statement of Claim then proceeded to allege various failings in the investigation and to claim damages for traumatic stress, nervous shock, loss of employment and loss of enjoyment of life and to recover costs incurred in the proceedings as well as for medical and like expenses.

12    No allegation was made in either the original or in later amendments to the Statement of Claim that the psychologist Kier was employed by the Defendant. It was common ground that he was not and that he was engaged in private practice on his own account.

13    The Statement of Claim was subsequently amended on a number of occasions in several different ways. Its final form in relation to the claim against the defendant based upon the actions of the DOCS officers was presented on 19 April 2001. The duty alleged in such further amended Statement of Claim was not changed thereafter. In its final form the Statement of Claim alleged the duties of care and breaches on which the plaintiffs relied in respect of actions by DOCS officers as follows:

“10.1 The First and Second Plaintiffs state that in conformity with the provisions of Section 22(7)(a) and (b) of the children (Care and Protection) Act 54 of 1987 (NSW), the Director-General who held offices as the Director-General of the Department of Youth & Community Services, owed them a Common Law duty of care in the performance of his duties under the Children (Care and Protection) Act (NSW):
(a) to promptly cause an investigation to be made into matters notified to him; and
(b) not to have instituted the proceedings referred to in paragraph 8 above, without being satisfied that the children referred to in paragraph 5 above may have been, or where in danger of being abused or were children in need of care.”

14    The breach of duty alleged in respect of the actions by the DOCS officers was as follows:

“10.2 The First and Second Plaintiffs state that the Director-General negligently breached the aforesaid duty of care.”

15    In relation to the claim against the defendant based upon the investigation conducted by the New South Wales Police Service, and the subsequent prosecution that was instituted and proceeded with, the plaintiffs also made various amendments on a number of occasions to the claim as initially framed. The original Statement of Claim claimed the assertion of a duty on the police officers “continually to review the evidence the subject of the prosecutions and to terminate the proceedings at the earliest possible date when it became apparent that the evidence was insufficient and/or unreliable and/or suspect” (see para 10 above). This claim was deleted on 19 April 2001. However, for the purposes of deciding the present case, I have assumed that the above duty is alleged in respect of the police officers in addition to the following:

“18. The plaintiff’s alleged that the police officers referred to in paragraph 3 above owed the Plaintiffs a duty of care:
(a) to have conducted a proper and thorough investigation of the facts relating to the alleged charges of sexual abuse which they intended to proffer against the plaintiffs.
(b) to carry out the aforesaid investigations in accordance with proper police practice and procedure.”

16    The breaches of duty alleged against the defendant arising out of the actions of the police officers named in the Statement of Claim were as follows:

“19. The police officers as aforesaid breached duties of care in that they failed to:
(a) conduct a proper and thorough investigation of the facts relevant to the charges which they intended to proffer against the plaintiff;
(b) carry out the aforesaid investigation in accordance with proper police practice and procedure.”

17    In an amendment to the Statement of Claim dated 1 May 2000 an additional breach was assigned, as it had been in the original Statement of Claim, namely that the police failed “continually to review the evidence the subject of the prosecution and to terminate the proceedings at the earliest possible date when it became apparent that the evidence was insufficient and/or unreliable and/or suspect.” This breach was deleted from the Statement of Claim in its final form as filed on 19 April 2001. However, for the purposes of determining this matter I have assumed that such breach, like the duty to which it corresponds, is included in the Statement of Claim.

PROCEDURAL PROVISIONS

18 Part 13 Rule 5 of the Rules of the Supreme Court (the Rules) empowers the Court to stay or dismiss generally any proceedings in which, inter alia, no reasonable cause of action is disclosed. The power conferred is discretionary and since an order under the rule terminates the proceedings without a hearing, the power should be exercised with caution and only where the defect is clear. However, the fact that the defect becomes clear only after extensive argument does not prevent the power being exercised (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). In Spellson v George(1992) 26 NSWLR 666 it was held that it is inherently unsuitable to deal with a case by summary judgment under Part 13 Rule 5 where the result must depend on all the facts and circumstances (at 681). In considering an application under the rule, an order should not be made merely because the pleading is not well expressed. In Wentworth v Rogers No.5 (1986) 6 NSWLR 534 Kirby P, with whom Hope and Samuel JJA agreed, said:

“Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill-expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which with appropriate amendment of the pleading and a little assistance from the Court, could be put into proper form” (at 536 - 537).

19    In the present case the Plaintiffs were represented at all stages by counsel and at the hearing of the present application had the benefit of Senior Counsel as well. The original Statement of Claim was clearly deficient in a number of respects. A number of amendments were effected to it on several occasions up until April 2001, at which time the Court was advised that the pleading in the form then proffered was the final form on which the plaintiffs sought the Court’s adjudication and that no amendments beyond those effected to that date could or would be made.

20    Whilst Part 15 Rule 26 of the rules is similar in some respects to Part 13 Rule 5, the power conferred by it is more limited. It is concerned with a pleading which discloses no reasonable cause of action or other case appropriate to the nature of the pleading, as well as with a pleading the form of which has a tendency to cause prejudice, embarrassment or delay in the proceedings. The result of a pleading falling within the ambit of the rule is that it is struck out to the extent that it infringes the rule and, subject to questions of limitations, prejudice to the opposing party and the like, leave to re-plead is normally given. As with Order 13 Rule 5 the Court may exercise its power even though doing so involves the determination of a difficult question of law (General Steel Industries Inc v Commissioner for Railways (NSW) (supra at 130).

21 The decision of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (supra) has been regarded as the law to be applied in Australia since that case was decided in 1964. It has been applied on numerous occasions in this court both by single judges and by decisions of the Court of Appeal by which a judge at first instance is bound. I have applied the principles enunciated in it in the determination of this case. However, in Agar v Hyde; Agar v Worsley (1999-2000) 201 CLR 552, Callinan J contrasted the test propounded by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (supra) with a test which he would prefer (supra at page 601, para 128).

22    As already indicated, the plaintiffs through their Senior Counsel have indicated that in the event the Court finds in favour of the defendant in relation to the final form of the plaintiffs’ Statement of Claim, no application is made for further amendment.

NEGLIGENCE

23 The actions by the Plaintiffs are framed in common law negligence. The High Court has recently re-visited the theory of negligence in Pyrenees Shire Council v Day (1998) 192 CLR 330 and Crimmins v Stevedoring Industry Finance Committee (1999-2000) 200 CLR 1.

24 In Pyrenees Shire Council v Day (supra) the High Court, by majority, rejected the doctrine of general reliance as the criterion for liability of public authorities in relation to the performance of their statutory functions. A number of the members of the Court considered the control mechanisms that existed in relation to the existence and ambit of a duty of care. One of these was the policy considerations which are applied to determine whether the law should recognise a new category of duty (per Toohey J at para 74). Gummow J pointed out that the general rule is that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned by their exercise, damages for negligence may be recovered. A public authority which enters into the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care, which is to be discharged by the continuation or additional exercise of those powers. An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently (supra at para 177). It should be noted that in formulating this general rule, Gummow J referred, inter alia, to X (Minors) v Bedfordshire Shire Council (1995) 2 AC 633 in his footnote 192.

25    Kirby J not only rejected the concept of general reliance, but propounded a three stage test for the existence of a duty of care as the law in Australia. He said:

“To decide whether a legal duty of care exists, the decision maker must ask three questions:
1. Was it reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position?
2. Does there exist between the alleged wrongdoer and such person a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’?
3. If so, is it fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrongdoer for the benefit of such person?” (supra at para 244).

26    Kirby J pointed out that the answer to the third question will require the decision maker to weigh questions of competing policy considerations in order to determine whether, notwithstanding the proof of foreseeability and proximity “the law should not impose a duty at all or a duty of a scope which the injured party needs in order to succeed” and pointed out that this question, as well as the others “will be answered with the guidance of the responses given in analogous circumstances in earlier cases, where a duty of care has been asserted and either found to exist or rejected” (at para 245).

27    The High Court returned to a consideration of the approach to the determination of a duty of care in negligence in Crimmins v Stevedoring Industry Finance Committee (supra). In that case, differing views were expressed by the members of the High Court in relation to the basis on which a statutory body should be subjected to a common law duty of care in relation to the exercise of its statutory functions. Gaudron J stated the conventional approach, namely to ascertain if the facts as pleaded or found gave rise to a duty of care under the common law and then to determine whether the relevant statutory provisions negate or modify any such duty. This means that even if the relevant legislation does not, in express terms, exclude the operation of the common law of negligence in relation to the statutory body’s exercise of its powers or functions:

“…the nature or purpose of the powers and functions conferred, or some of them may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or in part … where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non exercise of that power.” (at para 27)

28    McHugh J said that in the case of a statutory body the following criteria were to be applied in determining common law liability in negligence for failure to act and, by extension, for acting negligently:

“1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff, or were the plaintiff’s interest, vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty. (supra at para 93).

29    McHugh J also dealt in some detail with considerations that underlie policy factors. He said that in the case there in question, there were no such considerations. His reasons for this conclusion are illuminating in relation to policy considerations that are concerned with the exercise of investigative and prosecutorial functions and that operate in the field of child abuse, including sexual abuse. He said:

“There are no considerations such as those that led the House of Lords to deny a duty of care in X (Minors) v Bedfordshire County Council - cutting across of a statutory scheme, the ‘delicacy’ of the relationship between the parties or the fact that the officers of the authority might adopt a ‘more cautious and defensive approach to their duties’ … nor do I think that the position of the port inspectors is analogous to the position of police officers ( Hill v Chief Constable of West Yorkshire (1989) AC 53; Elguzouli - Daf v Commissioner of Police of the Metropolis (1995) QB 335) (at para 132).

30    McHugh J, like Gleeson CJ and Gaudron J, adopted an incremental approach and concluded that a duty did exist. However by majority the court held against the imposition of a relevant duty.

31    Gummow J adopted an approach different from, indeed seemingly opposite to, that referred to by Gaudron J in para 27 above. He stressed the need to determine from the terms of the statute and its scope of operation whether a duty under the statute was incompatible with any duty under the common law. He pointed out that the identification of the relationship between the statute and the other elements from which a duty of care arises was crucial, particularly where the law in question is one which, on its face, is concerned with public administration rather than the creation of private rights. Where the relationship between the parties established by the statute is so analogous to a relationship to which the common law attaches a duty, the common law should act in the same way with respect to the relationship flowing from the statute. Kirby and Hayne JJ seem to have adopted a like approach.

32    Kirby J referred with approval to and based his conclusion on the formulation of the basis on which a duty of care should be determined to exist as propounded by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council (supra), namely:

“If the plaintiff’s complaint alleges carelessness, not in the making of a discretionary decision to do some act, but in the practical manner in which that act has been performed … the question whether or not there is a common law duty of care falls to be decided by applying the usual principles, ie those laid down in Caparo Industries PLC v Dickman . Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care?” (at 739).

33    This approach was said by Kirby J to be the approach which he favoured in Pyrenees Shire Council v Day (supra) which was not “substantially different from the approach adopted in that case by Gummow J” (para 222). He pointed out that such an approach had the endorsement of the unanimous opinion of the House of Lords in X (Minors) v Bedfordshire County Council (supra), had been followed in other common law jurisdictions and was in his opinion “the best methodology or approach so far devised for solving the problems presented by a disputed claim about the existence of a common law duty of care.” (at para 222)

34 Hayne J did not accept the three stage test referred to by Lord Bridge in Caparo Industries PLC v Dickman (supra at para 272). In his view it left unanswered a number of questions, including questions such as to whom any duty is owed and the content of any duty. He preferred retaining considerations of proximity and fairness, which it was recognised were not susceptible of precise definition. He endorsed the approach adopted by Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 namely that:

“The law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by ‘indefinable’ considerations which ought to negative, or to reduce or limit the scope of the duty or the class or person to whom it is owed.” (at 481)

35    Such a formulation, in my opinion, has an underlying assumption that the recognition of a duty, or the ambit of any duty, owed to a particular person or class of persons may be limited by considerations of public policy.

36    From the foregoing it can be seen that notwithstanding the differing formulations of the approach to be adopted to the determination of the existence or non existence of a duty of care in negligence related to the exercise of functions by a statutory body, all involve a consideration of public policy, whether it be expressed in those words or merely as policy, or incorporated into the rubric of “just and reasonable”.

37    In my opinion nothing said by the members of the High Court in Agar v Hyde; Agar v Worsley (supra) detracts from the conclusion expressed in paragraph 36 above.

POLICE

38    Reliance is placed by the plaintiffs on the provisions of the Police Service Act 1990 in relation to the claim against the defendant based upon the allegations against the police. Particular attention is directed towards and reliance placed on the mission and functions of the Police Service as specified in s 6 of that Act. Section 6 provides as follows:

“1. The mission of the police service is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear.
2. The police service has the following functions:
(a) to provide police services for New South Wales;
(b) to exercise any other function conferred on it by or under this or any other Act;
(c) to do anything necessary for or incidental to, the exercise of its functions.”

39    For the purposes of s.6 police services include services by way of prevention and detection of crime, the protection of persons from injury or death and property from damage whether arising from criminal acts or in any other way, the provision of essential services in emergencies and any other services prescribed by the regulations (s.6(3)).

40 Reliance is also placed on the statement of values of members of the police service set out in s.7 of the Police Service Act 1990. That section requires each member of the police service to:

“act in a manner which:
(a) places integrity above all;
(b) upholds the rule of law;
(c) preserves the rights and freedom of individuals;
(d) seeks to improve the quality of life by community involvement in policing;
(e) strives for citizen and police satisfaction;
(f) capitalises on the wealth of human resources;
(g) makes efficient and economical use of public resources;
(h) ensures that authority is exercised responsibly.”

41 The provisions of ss 6 and 7 are aspirational in nature. Section 6(1)sets out the mission of the police service. It sets the objective or goal which the Police Service should strive to achieve. Section 6(2) indicates how that mission or objective may be fulfilled or achieved. Section 7 is an indication of expectations. It states the ideal. For example the concept of placing integrity above all. It is very broad. Indeed it is so broad as to be incapable of giving rise to a specific duty owed to any individual. The same can be said in relation to the provision of s 7(b) about upholding the rule of law. A member of the police service may, for example, act in a way in which he or she believes upholds the rule of law, albeit that such belief proves to have been mistaken. The sub-section does not look to an individual. It is concerned with the community at large. The provision that looks to a member of the police service preserving the rights and freedom of individuals (s7(c)) is also very broad. It may involve a balancing of conflicting rights of particular individuals in particular circumstances; in other circumstances it may involve a collision between the freedoms of an individual and the rights of those other individuals who make up the community at large. In s.7(e) the notion that a member of the police service breaches some duty cast upon such member by that sub-section if that member does not strive adequately for his or her own personal satisfaction as a police officer, is a nonsense. Section 7, like s.6, sets a goal after which each member of the police service is required to strive. It does not impose duties owed to individuals in the community to fulfil all or any of the matters set out in s.7, nor does it in turn give rise to a cause of action in a third party.

42    In the ordinary course of duty a police officer may be called upon to investigate crimes, complaints of crimes and circumstances which may involve crime. The nature, extent and timing of the investigation will be conditioned by a number of factors. One will be the apparent seriousness of the subject matter involved. Another will be the provisions of any relevant legislation. Yet another will be the resources, in terms of manpower, equipment, expertise etc, which are available. Another factor will be the competing demands on such resources. The foregoing are but examples. There are many other factors which may condition the nature, extent and timing of particular investigations, some of which may lead to prosecutions.

43 The common law traditionally provides a limited remedy in respect of prosecutions instituted by police which arise out of their investigations. The action for malicious prosecution is the recognised remedy of the common law. For a plaintiff to succeed in such an action two conditions must be fulfilled. The first is absence of reasonable and probable cause; the second, malice. If police officers were to be liable to actions for negligence in connection with investigations that resulted in prosecutions that were unsuccessful, the tort of malicious prosecution would be unnecessary. It would be bypassed by the law of negligence. Malice would be irrelevant, yet it has always been an essential element to be proved by those seeking redress in respect of an unsuccessful prosecution. As a matter of principle this suggests that an action for negligence in relation to investigations that produce prosecutions does not lie, in much the same way as a barrister’s immunity from malicious in-court slander suggests immunity from liability for the negligent conduct of a case in court, as Wilson J pointed out in Giannarelli v Wraith(1988) 165 CLR 543 at 573.

44    There are questions of public policy that militate against the extension of the law of negligence to investigations, prosecutions and other actions taken for the suppression of crime in the community. Some of these are the same as or analogous to the questions of public policy that militate in favour of a barrister’s immunity for negligence in the conduct of a case in court. Giannarelli v Wraith (supra at 555 per Mason CJ; at 573 per Wilson J; at 579 per Brennan J; at 592 per Dawson J; at 600 per Toohey J with whom Deane and Gaudron JJ agreed).

45    There is also high authority which weighs heavily against an action for negligence being allowed in connection with the performance of police functions of the kind referred to in the Statement of Claim in the present matter.

46 In Hill v Chief Constable of West Yorkshire (1989) AC 53 the House of Lords considered a case in which the plaintiff’s daughter was attacked at night in a city street and died as a consequence. The street in which she was attacked was in a police area in which the defendant was Chief Constable. Her attacker was alleged to have committed a series of murders and attempted murders in the same area and in similar circumstances over a period of years before the murder of the plaintiff’s daughter. The plaintiff claimed damages on behalf of his daughter’s estate for negligence on the basis that the conduct of the investigations into the murders and attempted murders which had been committed prior to the death of his daughter had been inadequate, as a result of which the police failed to apprehend the criminal in question and thus prevent the murder of his daughter. The House of Lords held that as a matter of public policy the police were immune from actions of negligence in respect of the activities in their investigation and suppression of crime. Lord Keith of Kinkel, with whom Lords Brandon, Oliver and Goff agreed in relation to the striking out of the plaintiff’s Statement of Claim as revealing no cause of action, said:

“the general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward failure …. others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts may be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and deflection from their most important function, that is the suppression of crime. Closed investigations would require to be reopened and re-traversed, not with the object of bringing any criminal to justice but whether they had been competently conducted.” (supra at 63)

47 Lord Keith also adopted what was said by Glidewell LJ in the same case in the Court of Appeal ((1988) QB 60 at 76), namely that the police were immune from an action of such a kind on grounds similar to those which in Rondell v Worsley ((1969) 1 AC 191) were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.

48    Lord Templeman agreed with the orders proposed by the other members of the House. He posed as the question for determination “whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force.” He determined that it was not, pointing out that if the courts were to have to consider the conduct of each police officer and decide whether each had failed to attain the standard of care of a hypothetical average policeman “the court would have to decide whether an inspector is to be condemned for failing to display the acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Doctor Watson.” (at 64)

49    It is clear from the foregoing that the decision to deny the imposition of a duty of care in favour of the plaintiff was based upon considerations of public policy.

50 An early application in England of the decision in Hill v Chief Constable of West Yorkshire (supra) was in Clough v Bussan (1990) 1 All ER 431 in which a cause of action in negligence against the relevant police authority was denied to a plaintiff who was involved in a motor vehicle accident at an intersection at which the traffic lights were not functioning. The allegation was that by failing to take prompt action after having been advised that the traffic lights were not operating the police had been negligent. Kennedy J held, applying what was said by Glidewell LJ in the Court of Appeal and by Lord Keith in the House of Lords, that as a matter of public policy the police authorities should not be exposed to actions of such a kind (at 435). The decision was also referred to with approval by the High Court in Crimmins v Stevedoring Industry Finance Committee (supra at 85 per McHugh J; at 45 per Kirby J) and by Gummow J in Pyrenees Shire Council v Day (supra at para 239).

51    In Elguzouli-Daf v Commissioner of Police of the Metropolis (supra) the English Court of Appeal applied Hill v Chief Constable of West Yorkshire (supra) and extended it to the function of prosecuting. It held that there was no general duty of care owed by the Crown Prosecution Service in the conduct of its prosecution of a defendant, even on the assumption that it was reasonably foreseeable that a plaintiff would suffer harm as a consequence of his or her detention being prolonged by the Crown Prosecution Service’s alleged carelessness. This case arose when two plaintiffs were arrested, charged and remanded in custody for quite lengthy periods, after which the prosecutions against them were discontinued. One plaintiff sued for negligence alleging that the Crown Prosecution Service had failed to act with reasonable diligence in obtaining, processing and communicating certain evidence which showed him to be innocent. The second plaintiff based his action for negligence on the allegation that it should not have taken the Crown Prosecution Service (CPS) such a lengthy period to conclude that the prosecution was bound to fail and to decide whether such prosecution should be continued. In reaching its conclusion that rights of action should be denied, the Court of Appeal expressed the view that the analogy of Hill v Chief Constable of West Yorkshire (supra) was instructive. In considering the public policy factors, Steyn LJ, with whom Rose and Morritt LJJ agreed, said:

“That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the CPS to those it prosecutes. Whilst it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central functions of prosecuting crime. It would, in some cases, lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process, but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system.” (supra at 349)

52    To these considerations, Morritt LJ added an analogy with civil litigation:

“One party to a civil action does not owe a duty of care to the other, nor does his solicitor: Business Computers International Ltd v Registrar of Companies ; Al-Kandari v J R Brown & Co . The reason is obvious: the duty to the other side might conflict with the duty to his own client. The analogy is not precise because criminal proceedings and the role of the prosecutor in them are different from civil proceedings and role of a plaintiff in them. But the respects in which the roles differ appear to me to suggest that the prosecutor is an a fortiori case. Some of his duties and in particular where they differ from those of a plaintiff are equated with those of a minister of justice. In that respect a liability in negligence would be even more inapposite than in the case of the opposing party or his solicitor in civil litigation.”(at 352)

53 Morritt LJ also took the view that, if prosecutors owed a duty of care to the accused, the independent torts of malicious prosecution and misfeasance in a public office would become unnecessary. In this context he repeated the warning of Lord Templeman referred in the decision of the Privy Council in Downsview Nominees Ltd v First City Corporation Ltd (1993) AC 295:

‘of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss …’”(at 316)

54    Whilst the public policy basis for the denial of a cause of action to the plaintiffs was a second reason for the refusal to allow such a cause of action by denying the existence of a duty of care, it was a strongly expressed reason.

55 Thus, the law in England is that not only is no duty of care imposed on police and proper authorities in exercising their prosecutorial functions, but they have an immunity founded in public policy against actions for negligence in the performance of their investigative and prosecutorial functions. This law is firmly established. To a similar effect is the decision of the New York Court of Appeal in Riss v City of New York (1968) 22 NY 2d 579; 240 N.E. 2d 860. However the situation in England is contrary to the approach adopted in Canada, whilst in New Zealand the High Court (Eichelbaum CJ) in Whithair v Attorney General (1996) 2 NZLR 45 declined to follow Hill v Chief Constable of West Yorkshire (supra) to the extent that the decision in it was based on public policy.

56    In Whithair v Attorney General (supra) it was alleged that there had been a wrongful imprisonment of the plaintiff by his being arrested and not admitted to bail because of a policy applied by police in cases of domestic violence. It was further alleged that there was misfeasance in public office based upon an allegation that the police were negligent or acted wrongfully in the exercise of their statutory powers in refusing bail and that such refusal constituted a breach of the New Zealand Bill of Rights Act 1990. In my opinion this case is distinguishable, there being no Bill of Rights in New South Wales.

57 In Grimwade v State of Victoria (1997) 90 A Crim R 526 Harper J considered an action in which a plaintiff, whose conviction by a jury had been quashed on appeal, sued the State of Victoria on a number of causes of action in tort, seeking damages arising out of his unsuccessful prosecution for a number of indictable offences. The Statement of Claim alleged that the prosecutor was subject to a number of duties. These included duties to act fairly to the accused, not to cause unnecessary harm to the accused and to discontinue the prosecution in certain circumstances. Each of the duties was alleged to have been breached to the financial and other detriment of the plaintiff.

58    In determining that no cause of action existed in relation to the continuance or carrying on of criminal proceedings, Harper J pointed out that once a prosecutor has discharged the duty to act fairly (one which is imposed in the interests of justice generally rather than in the interests of an individual accused) the prosecutor’s duty is to prosecute with vigour. Any resultant harm to an accused is then regarded by the law as simply a consequence of justice taking its course. He said:

“Indeed, were a prosecutor, for fear of doing harm to an accused, to fail to prosecute with such vigour as is consistent with fairness, then the prosecutor would probably be in breach of his or her duty to the State.
The duty upon which the plaintiff relies would, if it existed, raise just this conflict. The plaintiff seeks to place upon a prosecutor a duty to take care of the interests of the accused ‘in relation to the continuance and/or carrying on of … criminal proceedings’. At the same time the prosecutor has a duty … to prosecute … each case which properly warrants prosecution. It would in my opinion be extraordinarily difficult for a prosecutor to do justice to the duties of the office or the brief while at the same time’ taking care of the interest of the accused in relation to the continuance … of criminal proceedings’. The conjunction of these duties would, to adapt the words of Mason CJ and Deane, Gaudron and McHugh JJ in Gala v Preston (1991) 172 CLR 243 at 255 ‘involve a weighing and adjusting of [their] conflicting demands … in which it would be neither appropriate nor feasible for [a prosecutor] to engage’.
The law should not impose those difficulties on prosecutors. Far better to leave it to accused persons and their advisers, relying appropriately on the protection which the law and the courts otherwise provide to guard their own interests. As a matter of principle, therefore, I do not think that the plaintiff ought to succeed in this cause of action …” (at 546)

59    In denying the various causes of action pleaded Harper J said:

“It is unnecessary for me further to consider these authorities, because it is sufficient for my purposes that, in determining whether or not the State as prosecutor owes a duty of care to an accused, considerations of policy may be taken into account either in deciding whether the element of proximity has been made out, or as a discrete factor covered by the rubric ‘fair, just and reasonable’ or by the expression ‘any … other common law rule which operates to preclude the imputation of [a] duty of care to the plaintiff’”. (supra at 558)

60 A like result was arrived at by Higgins J in Emanuele and Ors v Hedley and Ors (1997) ACTSC 13, unreported, 7 March 1997. In that case the plaintiff alleged financial loss arising out of an arrest and prosecution on a charge of giving a bribe to the first defendant. The plaintiff was convicted of such offence, but the conviction was set aside on appeal. The plaintiff alleged that the defendants had acted improperly and were negligent in their investigation of the matter and in their prosecution of the plaintiff. Higgins J said:

“There is no tortious liability towards an accused person for negligently investigating or prosecuting that person. If there was such a cause of action, a prosecutor would be liable for damages notwithstanding that there was no malice and no lack of reasonable or probable cause for the investigation and prosecution in question. That would make malicious prosecution and malfeasance in public office and, indeed, intentional infliction of harm by an unlawful act, otiose. It would also bypass the torts of defamation and injurious falsehood” (at para 167).

He further said that:

“Insofar as the claim … relies on a failure on the part of the prosecutors … to terminate proceedings, though the right to make that decision was formally by then that of the then current DPP, I agree with Harper J in Grimwade v Victoria … that the same public policy would deny recognition of any duty of care so to do even if the prospect of success of the prosecution had then become tenuous” (at para 176)

61    Higgins J supported his conclusion by his reliance on Elguzouli-Daf v Commissioner of Police (supra) and went on to state that :

“there is simply no relevant duty of care recognised by the law. Not only does the law recognise no duty of care as alleged, the facts alleged do not give rise to any seriously arguable assertion that such a duty was breached” (at para 176)

62    On appeal the decision of Higgins J was affirmed. No adverse comment was made in relation to, no dissent expressed from, his reasons, indeed the court expressed the opinion that Higgins J “acted correctly” in entering summary judgment. This could be so only if Higgins J was correct in his conclusion that, as a matter of law, an action for negligence (inter alia) did not lie in the circumstances. Furthermore, in dealing with the claim for negligence against the first defendant to whom the bribe in question had been given and who was the informant to the police in respect of the bribe and against the Commonwealth (which was alleged to be vicariously liable), the Full Court of the Federal Court (Wilcox, Miles and Nicholson JJ) said:

“In dealing with negligence, no distinction needs to be made between the claim of negligent misrepresentation … and negligence simpliciter …the principles that dictate failure of the claim of intentional infliction of economic harm apply equally to both negligence claims; if anything the situation is even clearer having regard to cases like Gala v Preston and Italiano v Barbaro ”. ( at p.9 )

63    The foregoing line of authority in my opinion strongly supports the conclusion that an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body. This conclusion is consonant with what in my opinion is the correct affirmative answer to question 6 posed by McHugh J in Crimmins v Stevedoring Industry Finance Committee (supra). It is also consonant with what, in my opinion, is the correct negative answer to the third question posed by Kirby J in that case. In my opinion the same conclusion flows from the approach adopted by the other members of the High Court in both Pyrenees Shire Council v Day (supra) and Crimmins v Stevedoring Industry Finance Committee (supra). It is also a conclusion that is consonant with the law as stated in England.

64    For these reasons I am of opinion that the claim of the plaintiffs against the defendant based upon actions by police officers in investigating, prosecuting and continuing the prosecution of the plaintiffs must fail.

DEPARTMENT OF COMMUNITY SERVICES (DOCS)

65    Part 2 (s 12-29) of The Children (Care and Protection) Act 1987 (the Act) is concerned with children’s welfare. One of its objects is to identify the special needs of children, whether or not under parental care, with respect to services necessary to promote their development. The Part contains a range of provisions to give effect to this objective, including provisions permitting the medical examination of children under the age of 16 years (s.21) and provisions relating to the notification of child abuse. Section 22 of the Act provides that:

“1. Any person who forms the belief upon reasonable grounds that a child who is under the age of 16 years:
(a) has been or is in danger of being, abused, or
(b) is a child in need of care,
may cause the Director General to be notified of that belief and the grounds thereof either orally or in writing.
…
2. A person who, in the course of:
(a) practising as a medical practitioner,
(b) following another profession calling or vocation prescribed by the regulations for the purposes of this subsection (other than the profession of a barrister or a solicitor), or
(c) exercising the functions of an office so prescribed,
has reasonable grounds to suspect that a child who is under the age of 16 has been abused (whether the abuse consisted of sexual assault or any other form of abuse) is required to comply with subsection (4) in respect of those grounds …
…
(4) A person who is required to comply with this subsection in respect of having any grounds to suspect that a child who is under the age of 16 has been abused (whether the abuse consisted of sexual assault or any other form of abuse) shall:

(a) notify the Director General of the name or a description of the child and those grounds, or
(b) cause the Director General to be so notified,

promptly after those grounds arise

…


(6) A person who fails to comply with subsection 4 is guilty of an offence.

(7) Where the Director General has been notified under subsection (1) or (4), the Director General shall:

(a) promptly cause an investigation to be made into the matters notified to the Director General, and

…

(7B) For the purposes of an investigation under this section or any action arising under such an investigation, the Director General may do either or both of the following:


(a) The Director General may, in accordance with the requirements prescribed by the regulations, furnish a prescribed body with information relating to the welfare of a particular child or class of children,

(b) The Director General may, in accordance with the requirements (if any) prescribed by the regulations direct a prescribed body to furnish the Director General with information relating to the welfare of a particular child or class of children.

(7C) It is the duty of a person to whom a direction is given under s 7B(b) to comply promptly with the requirements of that direction.
(8) Where a notification is given under subsection (1) … or (4) or information is furnished under subsection( 7B) or (7C) :
(a) the making of the notification or the furnishing of the information shall not in any proceedings before a court, tribunal or committee, be held to constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct.
(b) No liability for defamation is incurred because of the making of the notification or the furnishing of the information.
(c) the making of the notification shall not constitute a ground for civil proceedings for malicious prosecution or for conspiracy
(d) the notification shall not be admissible in evidence in any proceedings before a court, tribunal or committee and no evidence of its content shall be admissible, and
(e) a person shall not be compelled in any proceedings before a court, tribunal or committee to produce the notification or any copy of or extract from the notification, or to disclose or to give any evidence of, any of the contents of the notification.

(8A) A reference in subsection 8 to information furnished under subsection (7B) or (7C) extends to any information so furnished in good faith and with reasonable care.

…

(12) A provision of any Act or law that prohibits or restricts the disclosure of information does not operate to prevent the furnishing of information (or affect a duty to furnish information) under this section. Nothing in this subsection affects any obligation or power to provide information apart from this subsection. ”

66    As can be seen from the foregoing the terminology used in the various subsections of s.22 differs. In subsection (1) the obligation is cast upon any person who forms the relevant “belief upon reasonable grounds”. In subsection (2) the obligation to comply with subsection (4) is dependent upon a person of the nominated class having “reasonable grounds to suspect” that a child under 16 has been abused. Section 22(4) imposes an obligation on a person to whom the subsection applies “in respect of having any grounds to suspect” that a child under the age of 16 years has been abused. A failure to comply with s.22(4) exposes such person to prosecution in respect of such failure. The obligation cast upon the Director General by s 22(7) depends upon a notification having been made under subsection (1) or subsection (4). Such notification enlivens s.22(7)(a), namely the requirement that the Director General promptly to cause an investigation to be made “into the matters notified”. The matters notified are those to which the antecedent subsections refer, namely the “belief upon reasonable grounds of a person,” as prescribed in s.22(1), the “reasonable grounds to suspect” held by a person referred to in ss.22(2) and (3) and the broader prescription in s.22(4), namely “any grounds to suspect” held a person. Thus belief, suspicion and the grounds therefor are “the matters” to which s.22(7) refers.

67 Belief and suspicion are fundamentally different concepts. Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. However, there needs to be some factual basis for the suspicion. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. The grounds which can reasonably induce such an inclination of the mind nonetheless still leave something to surmise or conjecture. What is necessary to induce a state of belief is likely to be more than is required to arouse suspicion, but less than is required to establish a state of fact. The objective circumstances sufficient to constitute a reason to believe something need to point more clearly to the subject matter of the belief than is the case in relation to suspicion, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter of the belief in fact occurred or exists (George v Rockett (1990) 170 CLR 105 at 115-116; Elcham v Commissioner of Police and Ors [2001] NSWSC 614, 27 July 2001, unreported at para 39).

68 A provision in a statute requiring “reasonable grounds” for a relevant state of mind “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person” (George v Rockett (supra at 112); Liversidge v Anderson (1942) AC 206 at 226 - 228 per Lord Atkin; Elcham v Commissioner of Police (supra at para 38)).

69    The requirement of the Act which triggers action by the Director General pursuant to s 22(7) of the Act is a notification to the Director General either under s.22(1) or s.22(4). Whilst the former provision requires the person making the notification to inform the Director General both of the belief which such person holds and the grounds for such belief, it is the notification which enlivens the duty cast upon the Director General. In this context it again should be noted that what is required by s.22(1) is a belief, not a firmly established fact. The belief may exist notwithstanding that the grounds on which that belief was formed leave some things to surmise or conjecture.

70    Section 22(4) requires even less on the part of the reporting person than does s.22(1). First, suspicion rather than belief is called for. Second, any grounds are sufficient. Suspicion itself involves both a lack of proof and a state of conjecture or surmise. It suffices that there are some facts from which a suspicion might be formed by a reasonable person.

71    Once the Director General has been notified in accordance with s.22 he must take action promptly, that is, immediately, without delay (New Oxford Dictionary of English (1998) p.1484). The action is for the purposes of ascertaining further facts and whether any further, and if so what, action is called for.

72    The obligation cast on the Director General by s.22(7)(b) is not dependent upon the investigation referred to in s.22(7)(a) having been completed. If such investigation had been completed before any action could be taken, the welfare of the child would continue to be in danger. Furthermore, once an investigation has been completed the Director General should be in a position to be satisfied that the child in question had or had not been abused or was or was not in danger of being abused. However, s.22(7)(b) is not concerned with that degree of satisfaction or certainty. It is sufficient if the Director General is satisfied that the relevant child “may have been abused” (italics added). Thus upon a notification being made the Director General may be satisfied that the child in respect of whom the notification has been made “may have been … abused” and for the protection of that child, and to assist the investigation of the circumstances, “may report the matters the subject of notification to the police.” Since “those matters” in s.22(7)(b) are the same as “the matters” in s.22(7)(a) and are in turn the subject of notifications under ss.22(1) and (4), the ambit of the decision-making function conferred on the Director General is wide indeed. It is an area of decision making peculiarly the creature of the statutory regime set up by the Act; Part 2 in particular. In this regard it should be remembered that the notifications contemplated by Division 1 of Part 2 of the Act include those based on the fact that a child is in need of care (s.22(1)(b)). The provision is for the protection of the child, no one else.

73    Special provisions are made in Part 5 of the Act in relation to children in need of care. The objects of that Part are set out in s.55. They are:

“… to ensure that children in need of care are provided with assistance and supportive services the provision of that assistance and the services being based on premises that:

(a) the welfare and interests of children are to be given paramount consideration,
(b) children are entitled to special protection …
…
(e) children should be protected from all forms of … exploitation,
(f) responsibility for the welfare of children belongs primarily to their
parents, but if not fulfilled, devolves upon the community.

(g) except in exceptional circumstances or pursuant to legal proceedings,
there should be no interruption of the relationships between children
and their parents, contrary to the wishes of the children and their parents.”

74    Thus in reaching a state of satisfaction that a child is in need of care the welfare and interests of the child must be paramount, even though the paramountcy of such welfare and interests may derogate from the rights of others, including the parents. Section 55 in my opinion requires the Director General to act in such a way as to protect the interests of the child on the basis of a possibility, namely that the child “may have been abused” and to further protect the interests of the child against a future danger, that is against the possibility of suffering harm in the future. None of these matters are certainties; usually none are or can be probabilities; all are delicate matters. Possibilities and prospects are sufficient and these, like beliefs and suspicions, depend upon less than an established state of fact. There may well be things left to surmise or conjecture. Furthermore, the satisfaction must be reached bearing in mind the paramountcy of the welfare of the child. This means that if the Director General errs, it is to be an error in favour of the protection of the child. This is a delicate issue. The function is one unknown to the common law. It is a function conferred as part of a statutory regime which does not expressly impose duties on the Director General or the officers of the Department in favour of the parents or relatives of the children who may be the subject of the exercise of functions under s 22 of the Act. Having regard to the terms of the relevant section, the purpose and operation of the Act, the width and indefinite character of the grounds on which the Director General and other departmental officers are required to act, I am of opinion that by implication the legislation excludes tortious liability of the kind alleged by the plaintiffs. Furthermore, to impose such a duty would, in my opinion, be inconsistent with the fulfillment of the statutory regime and would have the tendency to discourage or impede the achievement of the objectives of the Act, as well as directing resources away from protecting the welfare of the children.

75    The plaintiffs submit that s.22(7)(a) imposes a duty upon the Director General to cause “a proper and adequate” investigation to be made of matters notified to him and that on the material provided as part of the notification the Director General could not as a matter of law have been satisfied of any of the matters referred to in s.22(7)(b) and should not therefore have notified the police of the subject matter of the notification. Even if that were so it would not mean that a duty of care of the kind alleged in the Statement of Claim would exist.

76    In England the House of Lords has denied a right of action in negligence in child abuse cases at the instance of young people who had suffered parental abuse and neglect in respect of which the Child Care Authority, having received serious reports of such treatment, had failed to investigate these reports adequately or protect the plaintiffs from further harm. In X (Minors) v Bedfordshire County Council (supra) Lord Browne-Wilkinson, with whom Lords Jauncey, Lane, Ackner and Nolan relevantly agreed, upheld a decision by the Court of Appeal which had in turn upheld a decision by Turner J to strike out the proceedings. In his speech Lord Browne-Wilkinson denied both a cause of action under the general law and a cause of action under the relevant statutes. In relation to the common law duty alleged he said:

“… in my judgment 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 or have a tendency to discourage the due performance by the local authority of its statutory duties” (supra at 739)

and that:

“the welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be made on the basis of inadequate and disputed facts. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. (supra at 747)

He stressed that :

“… the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate … if a liability in damages were to be imposed it might well be that local authorities would adopt a cautious and more defensive approach to their duties … there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.” (supra at 750)

and

“Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory welfare scheme … The scheme involves the administrators in exercising discretions and powers which could not exist in the private sector … To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others). … In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer.” (supra at 751)

77    Thus, as can be seen from the foregoing, the law in England is such that a duty of care would be denied to the Plaintiffs were they to institute the present proceedings in England.

78    The decisions of all nine judges were adverse to the recognition of a common law duty of care in cases similar to the present case and as was said in Hillman v Black (infra per Matheson J at 497) were the House of Lords faced with deciding the present matter the claim would be dismissed.

79 In Hillman v Black (1996) 67 SASR 470 the Full Court of South Australia had to consider an action by a father against the Department of Community Welfare following allegations against him of sexual abuse of his young female child. The court held that there was no relevant duty owed by the Department of Community Welfare to the father. The case there under consideration was, as is the case here, not concerned to examine whether there was or may be a duty owed to children in respect of whom statutory functions were exercised by child welfare authorities. That case was concerned, as is this case, with duties alleged to exist in favour of third persons.

80    In Hillman v Black (supra) the court applied the decisions in X (Minors) v Bedfordshire County Council (supra), Elguzouli-Daf v Commissioner of Police of Metropolis (supra) and Hill v Chief Constable of West Yorkshire (supra). In doing so, the court considered the effect of s 91 of the Community Welfare Act 1971 (SA), which is similar in a number of respects to s 22 of the Act. Matheson J said that the authorities “compel the conclusion that the necessary relationship of proximity was not proved” and that policy considerations of the kind considered in the English cases in the House of Lords referred to above “are very persuasive (in Australia) also” (supra at 501; parenthesis added).

81 Prior J agreed with the trial judge as to the analogy that existed between the situation of the welfare authorities and the situation that existed in relation to the investigative role of the police. He referred to and adopted remarks of Peter Gibson LJ in M (a Minor) v Newham (1995) 2 AC 633 at 681 which had been quoted by the trial judge. They were:

“If the law were now to recognise a duty of care to the children by the local authority in taking decisions on interventions, there is a significant risk of the exercise of such functions being carried out in a detrimentally defensive frame of mind. I repeat that such decisions are delicate and difficult. I do not doubt that reasonable persons may often reach different conclusions on the same matter, and the nature of the matter is such as to arouse strong emotions. Further, if litigation were to be encouraged by a duty of care being held to exist, a major diversion of resources to defending such actions is likely to ensue. I cannot see that this is fair, just or reasonable…”

82    If this be correct in relation to the children in respect of whose welfare the Act makes extensive provision and whose welfare and interests are paramount considerations, then the situation is one a fortiori in respect of third persons, whether they be the parents or other relatives of the children or some more general class.

83    Perry J was of the opinion that, although there were differences in the law relating to the determination of whether or not a duty of care existed, the English cases were illustrative of the kinds of policy considerations which should be taken into account in construing statutory provisions applicable to public authorities sought to be made liable in negligence. He said:

“At the end of the day, whether the matter is to be approached within the rubric of the test of proximity or as a separate consideration extrinsic to that test, the question nonetheless comes down to one of statutory construction. In particular, the question of whether, having regard to the terms in which the relevant statutory provisions are cast, their operation, having regard to the other relevant circumstances, is such as to exclude tortious liability.” (at 515 - 516)

84    He continued:

“The recognition of a relationship of proximity such as to give rise to a duty of care towards the parents of a child whose welfare is the subject of investigation by the department in the exercise of its statutory powers and duties would be inimical to the proper and effective discharge by the department of its statutory role. Given that the overriding consideration to which the department must pay regard is the welfare of the child, the imposition of a common law duty of care vis-a-vis the parents would have a tendency to interfere with the due performance by the department of its statutory duties.” (at 520)

85    He also observed that in the case before the court:

“Compelling considerations outweigh the dictates of individualised justice. To acknowledge a duty of care in favour of the appellant would be unfair and unreasonable. It would create risks of a conflict of interest and duty upon those seeking to carry into effect the protective measures contained in the Community Welfare Act and impede the effective administration of it. The tendency to inhibit the expression of opinions and actions in a detrimentally defensive frame of mind are but factors contributing to the conclusion that the appellant’s alleged right of action must be rejected. Another is the unjustifiable diversion of money and human resources resulting from the existence of such a remedy.” (at 511)

86    I agree.

87    After the High Court had decided Pyrenees Shire Council v Day (supra) and Crimmins v Stevedoring Industry Finance Committee (supra) a case raising the same essential question as had been decided in Hillman v Black (supra) came before the South Australian Full Court (CLT v Connon (2000) Aust Tort Reports 63, 980). Many of the features of that case are similar to the case before this court. The plaintiff had been charged with criminal abuse of his three children. The charges were subsequently withdrawn following medical examinations of the children carried out by the South Australian Department of Community Welfare. The children had earlier been examined by two medical practitioners who concluded that the children had been subject to sexual abuse and it was claimed that the State of South Australia was vicariously liable for the actions of those two medical practitioners.

88    It was alleged in the Statement of Claim that the two medical practitioners carelessly reached the conclusion that the plaintiff’s children had been or probably had been subjected to sexual abuse and reported that conclusion to members of the department in circumstances in which the plaintiff would be regarded as the probable or possible perpetrator of such abuse. The duty alleged against the doctors for whose actions the State of South Australia was said to be vicariously liable was that each:

“… owed a duty of care to the plaintiff to carry out her duties and responsibilities and in particular the examination and diagnosis of persons and in particular children suspected of having been sexually abused … with due care, skill, discretion and diligence.” (para 14)

89    Doyle CJ, having analysed the judgments in Crimmins v Stevedoring Industry Finance Committee (supra), concluded that although the form of the statute in force in South Australia did not by implication exclude the imposition of the duty of care alleged by the plaintiff, a duty of care should nonetheless not be imposed. He said:

“In reaching this conclusion I respectfully take much the same approach as was taken by the House of Lords in X (Minors) v Bedfordshire County Council . Cases involving possible or suspected sexual and physical abuse are notoriously cases of great difficulty and require considerable care and delicacy in their handling. Parents, or persons in the position of parents, will often be potential suspects, and usually important witnesses. Their position in any such case is a particularly complex one. They are likely to be at one and the same time a potential object of suspicion, potential witnesses for the prosecution if one ensues, but also persons whose position must be considered in the interests of the child.
Persons involved in considering the interests of the child and protection of the child, such as employees of the department when allegations are made of sexual abuse, or when a suspicion of sexual abuse arises, have a particularly difficult task to discharge. Under the Act the employees of the department must give priority to the interest of the child but at the same time must consider the family relationship and the long term interests of the child in the family relationship. They have to consider the impact of their own conduct on the investigation of the offence. They have to consider the short term protection of the child, longer term protection of the child and the longer term welfare of the child. Some decisions have to be made more or less as soon as an allegation is made, others as the matter unfolds. Decisions have to be made on limited information, discretion must be exercised for obvious reasons … the situation will often be one in which strong feelings are aroused.” (paras 59 and 60)

90    Because of such considerations and the prospect that the imposition of a duty of care might easily encourage a degree of caution on the part of employees of the department that would in the longer term be contrary to the interests of the children requiring protection, Doyle CJ concluded that a duty of care should not be imposed.

91    Gray J, with whom Duggan J agreed (and with whose reasons, except on the statutory construction question, Doyle CJ also agreed), concluded that the recent decisions of the High Court in relation to the determination of whether a duty of care was cast on a particular statutory authority in relation to the exercise of its functions did not undercut the decision in Hillman v Black (supra) and that there was no duty of care which would allow for a cause of action of the type claimed by the plaintiff. In reaching this conclusion he contrasted the approach of Gaudron J in Crimmins v Stevedoring Industry Finance Committee (supra) namely that one looks to see if the circumstances gave rise to a duty of care at common law, and then inquires whether the statute should be understood to modify it (a view that appears to have been shared by Callinan J) with the opposite view expressed by Gummow J, namely that the starting point was to consider the legislative scheme and if it was incompatible with any possible duty, no further inquiry was called for. This was the view that Kirby and Hayne JJ appear to have adopted.

92    Having construed the South Australian legislation, Gray J concluded that its scheme, combined with the nature and purpose of the powers and functions conferred by it, evinced an intention by implication that the common law should be excluded, at least insofar as the alleged perpetrators were concerned; a like result to that at which I arrived in respect of the equivalent legislation in New South Wales.

93    In the result, the decision in Hillman v Black (supra) was not reversed, the duty, the existence of which that decision had denied, was again denied and this was done against the background of the latest statements of the law relating to duty of care in the High Court.

94 Senior counsel for the Plaintiffs referred to the decision of Studdert J in TC v Yanon (1999) NSWSC 31, 11 February 1999, unreported. That case concerned a claim by a child for negligence against officers of the Department of Youth and Community Services in failing to respond appropriately to complaints that concerned the child’s welfare. In a considered judgment Studdert J concluded that there was a duty to exercise reasonable care in the discharge of the requirements of s 148B of the Child Welfare Act 1939. That section is similar to s 22 of the Act. The Child Welfare Act 1939 also prescribed a statutory scheme which was concerned to ensure the welfare of children. However, the case was concerned with the imposition of a duty qua the child not qua a third person. It is thus, in my opinion, distinguishable - a view also expressed by Doyle CJ in CLT v Connon (supra at para 73).

95    It was conceded by Senior Counsel for the plaintiffs that unless CLT v Connon (supra) was not correctly decided or could be distinguished, the duty of care alleged to be cast upon DOCS and its officers in the final form of the Statement of Claim could not stand. In this regard, I note that on 1 June 2001 the High Court (Kirby and Hayne JJ) gave special leave to appeal against the decision of the Full Court of South Australia, but limited such special leave to the question of whether the Full Court erred in deciding that the Statement of Claim should have been struck out.

96    I am of opinion that the decisions in Hillman v Black (supra) and CLT v Connon (supra) correctly state the law for the purposes of the present case. They are based on a clear line of English authority which has received recognition and endorsement by the High Court. They are consonant with the analogous cases relating to the exercise by police and other authorities of their prosecutorial functions. The public policy factors which are referred to in the English cases and various cases in Australia in relation to prosecuting authorities, police investigations and in relation to departmental action concerned with the welfare of children the subject of sexual abuse or alleged sexual abuse, have been recognised by the highest judicial authority in Australia.

97    In my opinion there is no right of action conferred upon a parent or other relative against the Director General or officers of the relevant department which would give rise to liability of the Crown under the Crown Proceedings Act. The Statement of Claim does not plead a duty which is recognised by the law of New South Wales.

RELIEF

98    As I have indicated, I am of opinion that no reasonable cause of action is disclosed by the Statement of Claim in its finally amended form. This conclusion flows from the reasons given above. There are, however, additional matters which relate to the form of the Statement of Claim which bring it within Part 15 Rule 26 in that they are likely to cause prejudice, embarrassment and delay in the proceedings. For example, there is no nexus expressed in the final form of the Statement of Claim between the breach of the duty alleged to be owed to the First and Second Plaintiffs on the one hand and any duty alleged to be owed to the Third Plaintiff on the other. Furthermore, there is no allegation in the Statement of Claim that any notification by the Director General referred to the Third Plaintiff nor that such plaintiff was involved in the proceedings in the Children’s Court. Except for the reference to the police by the Director General of the notification under s.22 of the Act, there is no allegation of any departmental involvement in the decisions to institute or continue the prosecution of the Third Plaintiff. These are but examples of defects in the form of the Statement of Claim of such a kind as would have the tendency to cause prejudice, embarrassment or delay in the proceedings. There are a number of others that have not been argued since the parties were concerned with the matters of principle.

99    Since the requirements of Part 13, Rule 5 have been complied with, a dismissal of the action generally would appear to be the appropriate course to take. However, I will defer taking that course in order to give the parties an opportunity to argue as to the form of the Statement of Claim and as to the form of the order which should be made in the light of these reasons. To that end, I direct that the parties bring in short minutes of order on a date to be fixed.

14 December

Orders

100    For reasons set out in a separate judgment of today’s date, orders as follows:

1. The amended Statement of Claim of 19 April 2001 is struck out.

2. Leave is given to the plaintiffs to amend their Statement of Claim so as to claim on the causes of action of malicious prosecution and abuse of process generally in the form set out in the document filed in Court, initialled by me and dated 6 December 2001, a copy of which has been placed with the papers.

3. The costs of the application to amend so as to claim on the bases referred to in Order 2 (above), are to be the defendant’s costs in the action.

4. The plaintiffs are to pay the costs of the application to strike out the Statement of Claim and the amendments thereto, up to and including the amendment effected on 19 April 2001.

5. Order under Part 52A, Rule 9 for the payment of the costs referred to in Order 4 (above) before the conclusion of the proceedings refused.

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Last Modified: 02/15/2002