Hamilton v State of New South Wales

[2017] NSWCA 112

Court of Appeal (NSW)|2017-05-18|Before: Macfarlan JA, Payne JA, Adam P, Ms J, Beech-Jones J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-05-18

Before

Macfarlan JA, Payne JA, Adam P, Ms J, Beech-Jones J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Background

Harrison AsJ set out the background facts concisely in the Motion Judgment. Neither party takes issue with her Honour's account which is as follows: [8] "[4] By amended statement of claim filed 16 April 2014, Ms Hamilton alleges that four police officers, namely Detective Inspector Paul Jacob, Detective Sergeant Stuart Owen, Detective Senior Constable Graham Norris and Detective Senior Constable John Southgate ('the police officers'), were each guilty of the tort of misfeasance in public office. The alleged misfeasance by each of the police officers occurred between April 2005 up until the death of Ms Hamilton's de facto spouse, Ken Dyers ('Mr Dyers'). [5] From 2002 to 2005, the NSW Police Force conducted investigations into allegations of sexual offences perpetrated by Mr Dyers against two complainants ('Complainant 1 and Complainant 2'). Complainants 1 and 2 were both children whose parents were members of an organisation called Kenja, of which Ms Hamilton and Mr Dyers were the founders and leaders. The sexual abuse purportedly occurred during individual counselling sessions conducted by Mr Dyers at the Sydney premises of Kenja. [6] In February 2005, following a case review, the investigations into the allegations made by Complainants 1 and 2 were suspended without any charges being laid against Mr Dyers. [7] On 8 April 2005, one of the police officers released a written report ('the Norris Report') recommending that an investigation and enquiry be undertaken into Mr Dyers. In October 2005, following the recommendations in that report, the NSW Police Force set up 'Strike Force Caroola' to re-investigate the allegations made by Complainant 1 and Complainant 2 against Mr Dyers. The police officers were all involved in Strike Force Caroola. [8] On 27 October 2005, Mr Dyers was arrested in relation to the allegations. On 28 October 2005, a bail hearing took place at the Sutherland Local Court, with Mr Dyers being released on bail subject to conditions. On 24 and 25 May 2006, committal proceedings were held at the Downing Centre, and at the conclusion of such proceedings Mr Dyers was committed for trial, with bail being continued. [9] On 8 June 2006, Mr Dyers was indicted on 21 counts of aggravated indecent assault and aggravated sexual intercourse without consent. In September 2006, Mr Dyers made an application for a stay of the criminal proceedings. The application was opposed by the DPP. On 30 April 2007, the stay application was heard by Phegan DCJ over three days. On 3 May 2007, Phegan DCJ dismissed the application for a stay and decided that Mr Dyers was unfit to stand trial. On 7 June 2007, the Mental Health Review Tribunal determined, pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) that Mr Dyers would not become fit for trial within twelve months. Bail was continued. [10] Sometime in 2007, a further complainant ('Complainant 3') made allegations of sexual abuse against Mr Dyers. In 2003, Complainant 3 had been interviewed by police, and had denied that she had been sexually assaulted by Mr Dyers. She provided reasons for retracting her denial, and assisted police with their investigations relating to her allegations. She was interviewed by the police officers, as were other witnesses. [11] On 24 July 2007, one of the police officers [Southgate] wrote to the Mr Dyers' [sic] solicitors informing them that he was continuing investigations into allegations by Complainant 3, and a request was made that Mr Dyers be interviewed in relation to these allegations. [12] On 25 July 2007 at approximately 9.00 am, Mr Dyers was informed by his solicitor of the request made for a formal police interview. On 25 July 2007, shortly after being notified of this request, Mr Dyers committed suicide. Ms Hamilton alleges that she witnessed the suicide of Mr Dyers."

[2]

The pleading

The applicant's Amended Statement of Claim filed in the Common Law Proceedings (ASOC) alleges that the four police officers were employed by the State and that the State is vicariously liable for torts committed by them in the course of their duties. The ASOC alleges that one of the police officers, Detective Senior Constable Norris, did not conduct his review bona fide and made recommendations maliciously with the object of harming Mr Dyers. Three of the police officers are said to have arrested Mr Dyers on 27 October 2005 without undertaking an impartial and bona fide investigation into any of the allegations against him.
The ASOC asserts that at the committal proceedings held on 24 and 25 May 2006: "Evidence was adduced … revealing deficiencies in the prosecution's case and/or was consistent with Dyers' version of events."
The ASOC also says that the DPP opposed Mr Dyers' application for a stay of the criminal proceedings and that: "on the basis of the evidence adduced by Dyers on the application [the four police officers] knew, or were recklessly indifferent to, the fact that Dyers was extremely frail and weak, and would find it extremely difficult to cope with stressful situations".
It is alleged that Detective Senior Constable Southgate maliciously procured an allegation from the third complainant that she had been sexually assaulted by Mr Dyers. Moreover, each of the four police officers acted upon claims by this complainant "knowing that [she] was an unreliable witness and most likely, lying". The ASOC pleads that at all material times, the four police officers acted with malice or reckless indifference to the likelihood that the evidence of the complainants was concocted.
By reason of these matters, each of the four police officers is said to have committed misfeasance in public office. The ASOC pleads that the State is vicariously liable for the actions of the police officers because the Common Law Proceedings constitute a "police tort claim" for the purposes of s 9B(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) (Vicarious Liability Act). [10] Alternatively, the State is said to be vicariously liable by reason of s 5 of the Crown Proceedings Act 1988 (NSW) (Crown Proceedings Act). [11]
The applicant claims that the misfeasance in public office of the four police officers has caused her loss and damage, including psychological harm, arising from her having witnessed Mr Dyers' suicide. She seeks damages, including aggravated and exemplary damages.

[6]

Evidence Act

Section 118 of the Evidence Act creates client legal privilege over certain confidential communications. It provides that evidence is not to be adduced if, on objection by the client, the court finds that adducing the evidence would result in disclosure of, inter alia, confidential communications made between a client and lawyer for the dominant purpose of the lawyer providing legal advice to the client. The term "client" is defined to include "an employee or agent of a client" and "an employer of a lawyer if the employer is … a State" (s 117(1)).
Section 118 of the Evidence Act must be read with s 131A. The latter relevantly provides that if a person is required by a subpoena to produce a document which would result in the disclosure of a communication subject to client legal privilege and the person objects to providing the document, the court must determine the objection by applying the provisions of Part 3.10 (including s 122) with any necessary modifications as if the objection were to the giving or adducing of evidence.
Section 122 deals with loss of client legal privilege. It provides as follows: "122 Loss of client legal privilege: consent and related matters … (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118 … (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) … (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) … (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. …"

[9]

The Appeal Judgment

Beech-Jones J rejected the applicant's challenge to the finding that the Documents were confidential and that they were, therefore, subject to client legal privilege. [19] The applicant does not challenge this finding.
His Honour pointed out that the focus by the parties on s 122(5)(b) of the Evidence Act (joint clients) was misconceived. If the DPP had retained the Crown Solicitor at the relevant time, the DPP could simply rely on client legal privilege under s 118 because any disclosure would have been to the DPP's own solicitor. [20] However, his Honour found that Harrison AsJ erred in concluding that the evidence established that the DPP had retained the Crown Solicitor in July 2014 to act on the DPP's behalf. [21] The DPP does not challenge this finding.
Beech-Jones J upheld the alternative ground on which Harrison AsJ concluded that the DPP had not lost client legal privilege over the Documents. His Honour observed that the argument before Harrison AsJ proceeded on the basis that the "person" to whom the DPP had voluntarily disclosed the Documents was the State in its capacity as the body legally responsible for the police force and the four officers and that the Crown Solicitor had received the Documents on the State's behalf. Beech-Jones J also noted that it had been common ground that the relevant proceedings were the Common Law Proceedings commenced by the applicant. [22]
Beech-Jones J referred to a number of authorities, including the observation of Bergin J in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (Rickard) [23] that the "concept of a 'common interest' is not rigidly defined, and is a question of fact in each case". His Honour also referred to Bellew J's observation in Marshall v Prescott (No 4) [24] that a "mere common interest in the outcome of litigation will be sufficient".
His Honour continued as follows: [25] "[73] … Clearly the relevant interest must be more than a mere preference as to how the litigation should unfold. In many of the cases where a common interest was established the prospects of a non-party avoiding a legal liability on the one hand or successfully establishing a liability and recovering on the other were advanced by the party's successful pursuit of the litigation … [A] financial interest in the outcome of litigation may suffice. In Rickard, Bergin J found that a litigation 'funder had and has an interest in the most advantageous conduct of these proceedings by the plaintiff' and that sufficed at least in circumstances where the relationship between the funder and the plaintiff was 'collaborative and supportive'. [26] [74] … While there is no express allegation of impropriety against the DPP, an attack on the conduct of the prosecution by the DPP is implicit in the ASOC given the allegations that are made concerning the prosecution of Mr Dyers during a period after the DPP assumed the conduct of the prosecution and the absence of any suggestion that the ODPP's solicitors were misled by any police officer or otherwise inhibited in forming their own decision as to whether to maintain the prosecution. [75] If [the applicant] was to succeed on so much of the ASOC that impugns the conduct of the four detectives in relation to the prosecution of Mr Dyers from the time the DPP assumed conduct of the proceedings then, leaving aside any question of whether any of the DPP, a Crown Prosecutor or ODPP solicitors are a 'public officer', there would clearly be an enhanced potential for them to be found liable for misfeasance in public office (or perhaps malicious prosecution). While the prospect of them being joined to these proceedings or being sued in separate proceedings now appears remote, the same could not be said as at September 2014 even allowing for possible Limitation Act defences. From the DPP's perspective that was a realistic prospect at that time. In those circumstances her Honour was correct to hold that the DPP and the State had a 'common interest in the outcome' of [the applicant's] proceedings which satisfied s 122(5)(c)." [Footnote in original.]
Beech-Jones J pointed out that if the allegations in the ASOC were made out, the litigation would reflect adversely on the conduct of the DPP and the DPP's staff. His Honour inclined to the view that the DPP's interest in avoiding adverse findings of this kind would suffice to establish a common interest. However, it was not necessary to decide this question. [27]
Beech-Jones J also noted that the applicant had contended that Harrison AsJ erred in proceeding on the basis that all "Crown agencies" share a common interest in anticipated legal proceedings against the State. His Honour did not understand Harrison AsJ to have proceeded on this basis and thus the issue did not arise. [28]

[12]

Should leave be granted?

The applicant's written submissions contain a suggestion that the application for leave to appeal raises an issue of principle by reason of Beech-Jones J's citation of the observation of Bellew J that a "mere common interest in the outcome of litigation will be sufficient". However, in the course of argument in this Court it was pointed out that Beech-Jones J went on to consider what kind of interest was required for the purposes of s 122(5)(c) of the Evidence Act. His Honour accepted that more was required than a "mere preference as to how the litigation should unfold". [34] He found that there was a realistic prospect, as at September 2014, that the DPP and the DPP's solicitors might have been joined to the proceedings and that the joinder could have led to findings that they had committed misfeasance in public office, for which the State would be vicariously liable. In his Honour's view, the possibility of joinder leading to the DPP and the DPP's solicitors being found to have committed misfeasance in public office gave the DPP an interest in common with the State in the Common Law Proceedings.
It was also pointed out in argument in this Court, as noted above, that the DPP Act does not contain provisions equivalent to s 9B(2) and (3) of the Vicarious Liability Act. Accordingly, in September 2014 there was no statutory impediment to the DPP or the DPP's solicitors being joined to the Common Law Proceedings even though the Crown would be vicariously liable to the applicant for any tortious conduct of the DPP or the solicitors. Moreover, the protection given to the DPP by s 35 of the DPP Act only applies to actions taken in good faith.
Following these exchanges, Mr Brereton SC, who appeared with Mr Maroya for the applicant, accepted that the draft notice of appeal did not raise any issue of principle, but involved only challenges to factual determinations made by Beech-Jones J. Nonetheless, so Mr Brereton argued, the factual challenges justified a grant of leave to appeal. Specifically, Mr Brereton challenged Beech-Jones J's findings on the grounds that:

the DPP presented no evidence to demonstrate that the Office of the DPP was concerned about the prospect of being joined to the Common Law Proceedings; and
contrary to Beech-Jones J's findings, the ASOC did not attack the conduct of the DPP or the DPP's solicitors.

Even if these factual challenges were reasonably arguable, they would not justify granting leave to appeal. As Mr Brereton accepted, they raise no issue of principle. The fact that an applicant has an arguable case is not, of itself, a basis for a grant of leave in the absence of the applicant demonstrating that a denial of leave would cause significant injustice. [35] The outcome of this interlocutory dispute is not dispositive of the applicant's claim against the State. While no doubt the applicant's advisors would prefer to inspect the Documents, Mr Brereton did not identify any significant injustice that would clearly flow from a denial of leave to appeal.
In any event, there is insufficient merit in the applicant's arguments to warrant a grant of leave to appeal. The ASOC makes allegations about the police officers' reasons for arresting and charging Mr Dyers at a stage before the DPP became involved in the criminal proceedings. But the pleading also alleges, in effect, that the evidence adduced in the committal proceedings revealed deficiencies in the prosecution's case and/or was consistent with Mr Dyers' version of events. The ASOC further alleges that on the basis of the evidence adduced by Mr Dyers on the stay application, the four police officers knew that Mr Dyers was extremely frail and weak and would find it difficult to cope with stress. Since it was common ground that the DPP was responsible for concluding both the committal proceedings and the stay application, it is difficult to interpret the ASOC otherwise than as implicitly impugning the manner in which the DPP and the DPP's officers discharged their statutory responsibilities. The terms of the ASOC also provide an evidentiary foundation for Beech-Jones J's finding that there was a realistic prospect, as at September 2014, that the DPP or the DPP's officers might be joined as parties to the proceedings.
The applicant's written submissions contended that the DPP could not have a common interest with the State in the Common Law Proceedings because the DPP was "not interested in the outcome" of the applicant's claim against the State based on the alleged misfeasance of the police officers. This argument was not developed in the oral submissions, but it seems to assume that none of the allegations made against the police officers could be understood as impugning actions of the DPP or the DPP's officers. For the reasons that have been given, this assumption is not correct.

[14]

Endnotes

UCPR r 1.9(4) provides that a person objecting on the ground of privilege to the production of a document covered by a subpoena may not be compelled to produce the document until the objection is overruled.
Hamilton v State of New South Wales [2015] NSWSC 1430.
Motion Judgment at [47].
UCPR r 49.4 provides for a right of appeal to the Supreme Court from the decision of an associate judge, except where an appeal lies to the Court of Appeal. An appeal to the Court of Appeal was not available in this case: Supreme Court Rules 1970 (NSW), Pt 60 r 17.
Hamilton v State of New South Wales [2016] NSWSC 1213.
The relevant provisions of the Evidence Act are reproduced at [24] below.
Supreme Court Act 1970 (NSW), s 101(2)(e).
Motion Judgment at [4]-[12].
Appeal Judgment at [10].
See at [21] below.
See at [19] below.
Motion Judgment at [20], [21].
Motion Judgment at [22].
Motion Judgment at [37].
Motion Judgment at [42].
Motion Judgment at [46].
Motion Judgment at [46].
Motion Judgment at [47]-[48].
Appeal Judgment at [40], [41].
Appeal Judgment at [47].
Appeal Judgment at [55]-[56].
Appeal Judgment at [67].
[2006] NSWSC 234 at [50], citing Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280 (Giles J). Rickard concerned s 122(5)(b) of the Evidence Act, which, prior to the amendment of s 122 by the Evidence Amendment Act 2007 (NSW), was in substantially the same terms as the current s 122(5)(c).
[2012] NSWSC 992 at [61].
Appeal Judgment at [73]-[75].
Rickard at [41].
Appeal Judgment at [77].
Appeal Judgment at [78].
DPP Act, s 7(1); see at [26] above.
Young v Cooke [2017] NSWCA 33 at [20] (Gleeson JA, Macfarlan JA agreeing).
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [29] (Tobias JA, Basten JA and Handley AJA agreeing); Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[33] (Basten JA, Tobias AJA agreeing).
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39 at [9] citing Re the Will of Gilbert (1946) 46 SR (NSW) 318 at 322-323. See also Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19].
In re the Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323 (Jordan CJ, Nicholas CJ in Eq agreeing).
Appeal Judgment at [76].
See, for example, Lee v New South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 at [12] (Bathurst CJ, Macfarlan and Barrett JJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2017

Hamilton v State of New South Wales

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