Brown v State of New South Wales; Brown v State of New South Wales; Copeland v State of New South Wales

Category: Procedural rulings

Parties: Josephine Brown (Plaintiff - 2023/00321838 and 2024/00141176)
Narelle Copeland (Plaintiff - 2024/00250068)
State of New South Wales (Defendant - 2023/00321838; 2024/00141176 and 2024/00250068)

Representation: Counsel:
T O’Rourke (Plaintiff - 2023/00321838 and 2024/00141176)
APL Naylor and W Bruffey (Plaintiff - 2024/00250068)
J Brezniak (Defendant - 2023/00321838; 2024/00141176 and 2024/00250068)
Solicitors:
Rebecca Dunlop Legal (Plaintiff - 2023/00321838 and 2024/00141176)
O’Brien Solicitors (Plaintiff - 2024/00250068)
Makinson & D’Apice (Defendant - 2023/00321838; 2024/00141176 and 2024/00250068)

File Number(s): 2023/00321838;
2024/00141176;
2024/00250068

JUDGMENT – ex tempore

1. Before the Court for determination are two Notices of Motion filed in proceedings 2023/00321838 and 2024/00250068. However, as will become clearer in these reasons, the two Notices of Motion also affect another matter, being proceedings 2024/00141176.

2. In each Notice of Motion, the plaintiffs seek orders that the hearing listed to commence on 3 November 2025 in the three matters be vacated.

3. The background to the three matters needs to be stated. In the first matter of Brown v State of New South Wales (2023/00321838), the plaintiff, who was the domestic partner of a deceased person who I will call Gordon at the request of his relatives (“the Deceased”), sues the defendant for damages in the tort of negligence, asserting injuries arising out of the death of the Deceased in 2021. Damages are sought by Ms Brown for psychiatric illnesses, including post‑traumatic stress disorder (“PTSD”). The background facts are complicated. A short summary is that on 11 October 2023, police in Moree in New South Wales at night time spotted a car which they believed was stolen and followed it, but lost sight of it shortly after. Officers in another police car apparently saw the car on a side road and formed the view that it was bogged. The police in the second car got out and, it seems, on the facts, saw a person crouching nearby, who it is believed was the Deceased, and called out for him to stop. The Deceased ran off, climbed over a fence, and it seems somehow fell down a riverbank near or possibly into a river itself. The police undertook some searches for the Deceased with torches, and later conducted further searches where the Deceased was seen apparently struggling in the river. Some months later, the Deceased’s body was found. It is alleged in summary by the plaintiff in that case that a duty of care was owed to her which was breached by the police, and she suffered the psychiatric injuries which I have indicated as a result.

4. In the second matter which is impacted by the applications, being Brown v State of New South Wales (2024/141176), Ms Brown makes a claim under the Compensation to Relatives Act 1897 (NSW) for compensation for herself and two biological sons of Ms Brown and the Deceased. The compensation sought is in the usual form of seeking compensation for funeral expenses and other financial forms of dependency on the Deceased. A duty of care is said to be owed to those parties by the defendant which was breached.

5. In the third matter, being Copeland v State of New South Wales (2024/250068), the plaintiffs, who are the mother and the sister of the Deceased, seek damages for breach of an alleged duty of care owed to them by the State causing various alleged psychiatric illnesses, which differ between them but include depression, anxiety and PTSD, and other conditions.

6. As I indicated, the applications are to vacate a hearing commencing on 3 November 2025. On 16 October 2024, some ten months ago, the Judicial Registrar set the matters down for hearing for 12 days from 3 November 2025. The plaintiffs who are party to the Motions seek the vacation relying on slightly different evidence. In the 2023 proceedings, an affidavit of Rebecca Dunlop dated 6 August 2025 was relied upon.

7. In the Copeland proceedings, an affidavit of Jake Williams dated 7 August 2025 was relied upon.

8. The substantial basis for the applications is that it is submitted by the plaintiffs that the three proceedings, which are to be heard together, raise very similar issues to those considered by the New South Wales Court of Appeal in State of New South Wales v Cullen [2024] NSWCA 310. Ms Cullen in that matter sought special leave to appeal to the High Court and was granted leave to appeal. The High Court appeal is listed, I am told, for hearing on 8 October 2025.

9. The Court has been considerably assisted by written submissions prepared by Mr Naylor and Mr Bruffey of counsel, who appear for the Copeland applicants, in relation to the issues on the application. Ms O’Rourke, who appears for the plaintiff Ms Brown, adopted the submissions made by Mr Naylor and Mr Bruffey including their oral submissions.

10. Mr Brezniak appears for the State of New South Wales in each matter. The State adopts the position of neither consenting to nor opposing the applications to vacate the hearing date. It was brought to my attention by Mr Brezniak that various parties, including the applicant Brown and the applicants Copeland, have also commenced proceedings for alleged unlawful discrimination under the Australian Human Rights Commission Act 198**6 (Cth) in the Federal Circuit and Family Court of Australia. It is unnecessary for the purpose of these applications to say any more about those proceedings which were not relied on by the applicants.

11. In substance, it is submitted by the applicants that the appeal in the decision of Cullen is highly relevant, and it is to be reasonably expected that the High Court, in determining that appeal, will consider the existence and scope of any duty of care owed by police officers in this State to persons in an operational context.

12. The facts in Cullen are quite different to the facts in the present case. However, all matters do raise issues relating to the duty of care owed to persons by police officers. It is unnecessary to go into detail in relation to the Cullen decision in the Court of Appeal for the purposes of these applications. The decision is a complex one. Ms Cullen was a bystander at a rally held in Sydney on 26 January 2017. In the course of that rally, police officers entered the crowd for two reasons: one, to extinguish any fire that could have occurred due to what appeared to them to be initial steps taken to set on fire an Australian flag; and secondly, to arrest a person who, it was alleged, committed an assault on another police officer who was filming the protest.

13. It was during the latter acts of a police officer, while seeking to arrest the person allegedly observed to have committed the assault on the other police officer, that Ms Cullen, who was standing nearby, was knocked over and injured. The Court of Appeal differed in relation to the views that were held on the issues raised. The Court considered the issues in the context of s 43A of the Civil Liability Act 2002 (NSW)(“CLA”). All members of the Court of Appeal held that s 43A of the CLA did not apply in the circumstances, and that the officers were not acting in the exercise of a special statutory power within that section as any person could have properly arrested the person who assaulted the police officer. All judges in Cullen in the Court of Appeal held that a duty of care was owed by police to take reasonable care to avoid the risk of inflicting physical injury on a person in the immediate vicinity of an operational response in the context of the protest. However, in relation to the injury to Ms Cullen, which involved the second acts which I have described, the Court of Appeal differed, and it was held by the majority that there was no breach of any duty of care owed by the police officers involved. White JA dissented on that issue.

14. The Court of Appeal also considered s 5D of the CLA as to causation issues and whether a tort of battery had been committed by the police officers. The majority held that causation had not been established even if there was a breach of a duty of care owed, and that the conduct of the person committing the assault constituted a novus actus interveniens, which broke the chain of causation from any breach by the officer. It appears that the majority also held that no duty of care was owed by police to the offender who was allegedly seen to commit the assault.

15. Annexed to the affidavits relied on in the present applications are the written submissions filed in Cullen in the High Court. Those submissions are detailed in relation to the facts and legal principles considered in Cullen. However, they do raise significant issues in relation to the existence and content of a duty of care owed by police officers in an operational setting as well as questions relating to causation and breach.

16. Mr Naylor and Mr Bruffey, who appear for the Copeland applicants as I have indicated, have provided written submissions, in which it is submitted that it is clearly in the interests of justice to vacate the hearing date to await the decision in Cullen, because Cullen, it is perceived, will deal with a number of relevant issues, including providing clarification on the issue of a duty of care owed by police officers. I refer in particular to paragraphs 38 and following in the written submissions.

17. The submissions were expanded upon orally by Mr Naylor. He:

(a) Took me through some of the relevant aspects of Cullen in the Court of Appeal; (b) Dealt with the issue of whether the existence of a duty of care owed by police would be considered, and whether finding such a duty as being owed would be incompatible with the police acting officially in accordance with their statutory duties; (c) Stated that Cullen would deal with the issue of whether any duty of care is owed by police in an operational setting. The Court of Appeal in Cullen accepted that a duty of care could be owed in certain circumstances, relying on recent authority in the United Kingdom in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; (d) Submitted that police must owe a duty of care to the public, but the extent of the duty is unclear. That is why the hearing in Cullen is important; (e) Submitted that now a hearing date has been given by the High Court in Cullen, on 8 October 2025, the hearing will occur in the not‑too‑distant future; (f) Submitted that it is not in the interests of justice to have a hearing for 12 days where the legal landscape is unclear, and where it will be highly likely to be clarified in Cullen, having regard to the fact the duty question of police is in issue; (g) Submitted that it appears from the submissions in Cullen in the High Court that the State may be raising the issue of whether any duty of care at all exists in an operational setting, contrary to the decision of the Court of Appeal in Cullen; (h) In relation to an indication from the Court that, unless the matter is expedited, a hearing in November 2026 appears to be the earliest available, submitted that the matter should still be vacated, but in the context where the defendant has formed the view that all police officers involved should give evidence, and not simply the tender of a transcript of what was said to be evidence given in an inquest; and (i) Submitted that the issue of causation is significant in Cullen, as it is likely to be in the present case.

18. In the end, it is submitted on behalf of all the applicants that, in a practical sense, to cause the final hearing to continue would constitute a denial of justice to the plaintiffs.

19. It is important to set out the legal principles applicable to the Court’s consideration. Under s 66 of the Civil Procedure Act 2005 (NSW), the Court has the power to adjourn a hearing date. That extends also to the power to vacate a final hearing: Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190 per Price AJA at [4]; City of Sydney Council v Satara [2007] NSWCA 148 per McColl JA (with whom Beazley and Tobias JJA agreed) at [17].

20. In Davis v Kent [2017] NSWCA 122, the Court of Appeal in a joint judgment stated the following at paragraph 33:

“The Court and parties are entitled to, and should expect that, subject to justifiable and justified circumstances, proceedings will commence on the allocated date for hearing and proceed to finality and that this process will be carried out with appropriate efficiency. The requirement that proceedings be determined with due dispatch, having regard to their just disposition, is now part of the statutory basis upon which litigation is required to be conducted.”

21. Earlier this year, in SA (a pseudonym) v Hatfield [2025] NSWDC 56, I considered in some detail the law relating to the vacation of a hearing date: see at [24] ‑ [29]. As I indicated in that case, the vacation of a hearing date is an important step to take. Good cause must be given for the vacation of a hearing date: at [24]. Price AJA in the Zheng matter stated at paragraphs 11 and 12 the importance of taking into account ss 56 to 58 of the Civil Procedure Act 2005 (NSW) in considering a vacation application and referred to the authorities establishing that. At paragraph 12, his Honour noted that it was necessary to bear in mind the overriding purpose in s 56, to ensure that litigation is resolved in a timely fashion, and that that involved some conflicting tensions between speed and the avoidance of delay, the reduction of costs, and the proper consideration of issues raised by the parties. His Honour emphasised that the Court of Appeal had stated on a number of occasions “that the ‘parties cannot determine the management of their own cases in their own way and at their own speed” and that “the timely disposition of litigation is central to the provision of justice.’”

22. Here, of course, a vacation of hearing is sought because of the approaching High Court appeal, and what is submitted to be the likelihood that their Honours in the High Court will consider principles of law highly relevant to the matters presently before the Court.

23. There have been a number of cases which have considered the principles applicable in such a situation.

24. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253, Starke J stated:

“Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.”

25. This passage was quoted with approval by the Court of Appeal in Satara, above, at [19]. The Court of Appeal in Satara stated the principle that the Court should deal with the law as it is rather than speculate about changes in the law. The Court of Appeal in that case appeared to make a distinction between situations where legislation is proposed altering a legal position, and appeals that may well be decisive in relation to legal principle.

26. In Meggitt Overseas Ltd v Grdovic (1988) 43 NSWLR 527, the Court of Appeal considered the former situation, and held that it was an error by a judge sitting in the Dust Diseases Tribunal to grant an adjournment following the announcement of proposed amendments to the dust diseases legislation to allow a plaintiff to take advantage of the amendments. The Court of Appeal considered the principles applicable in detail, particularly at 523 ‑ 535.

27. It is clearly the case that, in appropriate situations, the Court can adjourn the matter where appeal proceedings exist which will determine important questions of law. This has been accepted as a long‑standing principle: see Re Yates*’* Settlement Trusts [1954] 1 All ER 619 per Sir Raymond Evershed MR at 621.

28. That principle has not been questioned in Australia. Evershed MR made clear in Re Yates that the determination of such applications depends very much on all the circumstances of the particular case.

29. In Geelong Football Club v Clifford [2002] VSCA 212, the Victorian Court of Appeal considered a similar situation. I refer in particular to the reasons of Ormiston JA (with whom Callaway JA agreed) at [6] ‑ [8].

30. His Honour stated in summary as follows:

(a) A party is entitled to a trial of a proceeding ready for hearing unless it is clearly shown that injustice is likely to be caused if the adjournment is refused; (b) There are no black‑and‑white rules preventing adjournments in appropriate circumstances where an appeal in another relevant matter is to occur; (c) In civil cases, there may be situations where some technical rule of law or disputed legislation is involved in an appeal, and the outcome of the appeal in a case such as a test case would involve the situation where it would be preferable to await the expected outcome. His Honour noted that the sooner the appeal is likely to be resolved, the stronger may be the argument in favour of delay, especially in terms of convenience to parties and the trial court itself; (d) Generally speaking, however, a possible change in the law is not to be treated as justification for failing to hear a case fixed and ready for trial; (e) That is particularly the case where potential changes in the law involve some speculation; (f) It is particularly the case where, on an appeal to the High Court, special leave to appeal has not yet been granted, although his Honour made clear in paragraph 8 in his decision that the principles would apply even on the assumption that special leave to appeal has been granted.

31. In the Satara case, McColl JA undertook a very detailed consideration of the principles applicable. In that case, the trial judge, Rothman J, vacated a hearing date. An appeal was brought and leave to appeal was granted, and an ex tempore judgment was handed down by McColl JA. Her Honour set out the principles applicable, in particular at paragraphs 31 ‑ 38. It is important to note paragraph 31, where her Honour stated the following:

“A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing, unless to refuse an adjournment would prejudice a party to a point of denying justice...this principle is accentuated by ss 56 and 57 of the Civil Procedure Act.”

32. Her Honour emphasised that each case must turn on its own facts: at [38]. It seems that the principle stated at [31] in Satara which I have set out is the applicable principle to apply to the present applications. That statement of principle in Satara by McColl JA has been followed in later cases expressly:

(a) Commissioner of the Australian Federal Police v Lee [2017] NSWSC 1205 per Campbell J at [12], where his Honour noted that the principle in the Satara decision “sits well with the Civil Procedure Act”; (b) McPhillamy v R [2017] NSWCCA 130 per Meagher JA at [24] (although his Honour dissented in the result, these principles were not in question); (c) In AJQ24 v Commonwealth of Australia [2025] FCA 676 at [3] per McDonald J.

33. It is important to note various aspects which have emerged from the authorities which would appear to be relevant to the present applications:

(a) Each case has to be considered on its own facts; (b) Here, special leave to appeal has been granted by the High Court and written submissions have been filed in Cullen. In the Geelong Football Club case and Satara, special leave to appeal had not been granted: see Satara at [11] and [33]. However, the fact leave has been granted was not regarded as decisive in the Geelong case at [8] and in Satara at [38]; (c) Here, the vacation of the hearing date is not opposed by the State. The position was different in Satara, where it was opposed: at [9]; (d) The length of the likely hearing, here, 12 hearing days, is relevant. It is relevant both as to potentially wasted costs to the plaintiff and delays to both of the parties. Similarly, in Satara, the matter was listed for three weeks in the New South Wales Supreme Court; (e) The Court of Appeal in Cullen was divided as to the outcome. However, all judges held that a duty of care could be owed by police in an operational situation involving a protest to a bystander. That, on one view of the submissions, seems to be at least put in issue by the State in submissions filed in the appeal in Cullen; (f) The extensive delay which would result through an adjournment in hearing this case is significant. On my enquiries, it would involve, without expedition, a hearing at the end of 2026. To me, that is a highly relevant matter; (g) The fact that the application is made well prior to the hearing date is relevant in the present case: see Satara at [35]. In the case involving the Commonwealth heard by McDonald J in the Federal Court, the application was made only two days prior to the hearing but succeeded; (h) The effect of the delay on the potential fading recollections of witnesses, in my view is relevant, as several police officers were involved in the present case. Although I am told that there was an inquest and transcript was involved, in my view that is an important matter; (i) The importance of the matter to the various plaintiffs is, in my view highly relevant, particularly the compensation to relatives action which could affect the children of the plaintiff and the Deceased.

34. I expressly take into account ss 56 to 59 of the Civil Procedure Act as the authorities indicate that I should, both in Satara and in the recent decision of Price AJA in Zheng. I also take into account the real possibility that the High Court in Cullen will consider:

(a) The existence and scope of any duty of care owed by police to persons in an operational setting, particularly those not involved in a crime; (b) The relevance of police statutory functions to the existence of private duties and whether they are congruent; (c) The correctness of the general principle in Cullen, that police may owe a duty of care in certain limited circumstances; (d) The issues relating to the application of s 5D(1) of the CLA to any breach found, and whether there could be a novus actus interveniens: see Satara at [34].

35. I also take into account a real possibility that the High Court may declare the law on the relevant question of duty with likely retrospective effect: see Meggitt at 534-535.

36. The important factors to me in the present applications include the following:

37. The matters have long been set down for hearing, since October 2024;

38. They are listed for a 12‑day hearing;

39. The State does not actively opposed the vacation applications;

40. The general principle which I have referred to in Satara, which appears to be accepted in other cases, that where a case has been specially fixed for a hearing at a date some months in the future, it should proceed to a hearing unless to refuse an adjournment would prejudice a party to the point of denying justice;

41. The facts in Cullen and here are different, although the duty question could potentially be the same. The reason why the cases are not on all fours is that Cullen involved a crowd bystander, compared to the present case that involved a suspected offender;

42. Here, it appears that the context involves an alleged omission to properly search for, and call for assistance in finding, the Deceased, compared to Cullen which involved an active advance by a police officer through a crowd to arrest someone;

43. The person injured in Cullen was not an alleged offender, here the Deceased was a suspected offender;

44. The Court in these matters is able to decide numerous factual issues which need to be decided anyway. That is highly relevant, in my view;

45. It is up to the Court, not the parties, to decide the vacation of hearing issue, and the resources of the Court have to be taken into account;

46. The issue of the potential fading memories of the witnesses.

47. Taking all of the matters referred to above into account, it seems to me that while it is strongly arguable that the decision in Cullen when decided would be relevant, it is not clear that it will decisively state the law applicable to these matters. It involves some degree of speculation as to what Cullen will ultimately decide. The Cullen matter is listed for an October 2025 hearing, and it would be expected that the High Court could be reserved in its decision for several months at least. The hearing involved in the present cases, if it is a 12‑day hearing, would probably involve written submissions as difficult issues are involved, and there would be some delay in a judge handing down a decision. I particularly take into account that the present cases are factually rich and that many witnesses are involved and memories fade over time. I take into account the resources of the Court.

48. Although the Crown neither consents nor opposes the vacation in question, taking into account all of the issues which I have referred to above, I am not persuaded in the exercise of the discretion which I have under s 66 of the Civil Procedure Act that it is appropriate to vacate the hearing date.

49. Accordingly, the orders I make are as follows:

In relation to the Notices of Motion filed on 6 August 2025 and 7 August 2025:

1. The Notices of Motion are dismissed.
2. The costs of the Notices of Motion are to be costs in the cause.
3. The hearing commencing on 3 November 2025 is confirmed.
4. Liberty to apply on 3 business days’ notice.

**********